Ayers v. Young

• Decision Date: 09 March 1954
• Citation: 210 Ga. 441,80 S.E.2d 801
• Court: Georgia Supreme Court

Page 801

80 S.E.2d 801

210 Ga. 441

AYERS v YOUNG.

No. 18489.

Supreme Court of Georgia.

March, 9, 1954.

Syllabus by the Court.

1. A cross-action by the defendant must be germane to the cause of action made by the petition. In this case a part of the defendant's answer sought to recover from the plaintiff on allegations that were not germane to the cause of action made by the petition, and this part of the answer was properly stricken on motion.

2-5. The special grounds of the amended motion for new trial, assigning error on extracts from the charge of the court, show no cause for reversal.

Mary P. King, by next friend, filed an action against Annie W. Ayers for the cancellation of a warranty deed to described property, alleging that, at the time of the execution of the deed, the plaintiff was of unsound mind and did not have sufficient mentality to enter into a contract for the sale of her property. A copy of the deed sought to be canceled was attached to her petition as a part thereof. She further alleged that the defendant took advantage of her mental condition and her weakness of mind and induced her to part with title to her property for a wholly insufficient consideration. She prayed that the deed be canceled, that the defendant be enjoined from selling or encumbering the property, for process, and for other relief.

The defendant filed an answer, denying the allegations of the petition and alleging that the plaintiff had mental capacity to execute and deliver the deed, and that the defendant had befriended and practically supported the plaintiff for a number of years. In paragraphs 9 and 10, the defendant alleged: In 1938 she had advanced the total sum of $264.68 for necessaries for the plaintiff; in 1939 she had advanced $271.31; in 1941, $327.90; and in the first five months of 1942, a total of $116. The plaintiff is entitled to certain credits, leaving her indebted to the defendant in the sum of $909.11. While the deed sought to be set aside was a legal and valid conveyance, should the plaintiff prevail and the deed be canceled, the defendant should recover the sums so advanced.

When the case was called for trial, the plaintiff moved to strike paragraphs 9 and 10 of the answer, which alleged that the defendant had made certain advancements of money to the plaintiff. The motion to strike was sustained, and these paragraphs were stricken. Exceptions pendente lite to this judgment were duly filed.

The cause proceeded to trial and resulted in a verdict and judgment for the administrator of Mary P. King, who had been substituted as the party plaintiff.

The defendant's motion for new trial as amended was denied, and she excepted. Error is also assigned on the exceptions pendente lite.

The parties will be referred to as they appeared in the trial court.

Ford & Houston, W. J. Forehand, Sylvester, for plaintiff in error.

Robley D. Smith, Tifton, Robert B. Williamson, W. J. Crowe, Sylvester, for defendant in error.

HEAD, Justice.

1. A motion to strike in the nature of a general demurrer may be made at any time before verdict. Kelly v. Strouse & Bros., 116 Ga. 872, 43 S.E. 280; Dingfelder v. Georgia Peach Growers Exchange, 184 Ga. 569, 192 S.E. 188; Gibbs v. Forrester, 204 Ga. 545, 549, 50 S.E.2d 318; Pearson v. George, 209 Ga. 938, 946, 77 S.E.2d 1.

In the present case, the defendant relies upon the rule that, if any part of a pleading is good in substance, it would be error to sustain a general demurrer or a motion to strike in the nature of a general demurrer to the entire plea. This rule is so well recognized as to require no citation of authorities here. The defendant in her answer set up two entirely separate and distinct matters. In the first part of her answer, she denied that the plaintiff was lacking in mental capacity to contract, and averred that she held a good and valid title to the property described. By paragraphs 9 and 10 of her answer, she set up an independent action to recover from the plaintiff for moneys had and received. It was not alleged by the defendant that the advancements made by her to the plaintiff formed any part of the consideration for the deed, and she sought to recover such advancements only in the event the jury should find that the plaintiff was lacking in sufficient mental capacity to contract and convey her property.

The question is thus presented as to whether or not an answer which sets up two separate and distinct matters, one germane to the issue, and the other wholly unrelated to any issue made by the plaintiff's pleadings, may on oral motion have stricken therefrom that part which is not germane to the plaintiff's cause of action. The defendant contends that paragraphs 9 and 10 of her answer could have been objected to only by special demurrer filed at the first term. This contention can not be sustained.

In Martin v. Bartow Iron Works, 35 Ga. 320, 323, the distinction between a general and a special demurrer is stated as follows: 'A general demurrer enables the party to assail every substantial imperfection in the pleadings of the opposite side without particularizing any of them in his demurrer; but if he thinks proper to point out the faults, this does not vitiate it. A special demurrer goes to the structure merely, and not to the substance, and it must distinctly and particularly specify wherein the defect lies; * * *.'

In Douglas, Augusta & G. Ry. Co. v. Swindle, 2 Ga.App. 550, 59 S.E. 600, Judge Russell (later Chief Justice of this court) stated: 'A demurrer addressed to a particular paragraph of the pleadings is not necessarily, for that reason, a special demurrer.' To support this statement, Judge Russell relied upon the decision in Martin v. Bartow Iron Works, supra. See also Linder v. Wimberly, 158 Ga. 285, 290, 123 S.E. 129; Rivers v. Brown, 200 Ga. 49, 36 S.E.2d 429; Carusos v. Briarcliff, Inc., 76 Ga.App. 346, 45 S.E.2d 802.

In the present case, the motion to strike was no less general because it was aimed at only one of the separate and distinct matters set up in the defendant's answer. For cases applying the rule that a motion to strike may be sustained to a part of an answer see White v. Blitch, 112 Ga. 775, 38 S.E. 80; Remington v. Hopson, 137 Ga. 95, 72 S.E. 918;, Jones v. Jones, 138 Ga. 730, 75 S.E. 1129; Bibb Sewer Pipe Co. v. Westinghouse Electric & Mfg. Co., 142 Ga. 263, 82 S.E. 642; Rivers v. Brown, supra; Atkinson v. Universal Credit Co., 51 Ga.App. 517, 518(2), 180 S.E. 926.

In support of her contention that she might properly set up in her answer a cross-action such as that contained in paragraphs 9 and 10 of her answer, the defendant relies upon Code, § 81-106. Under this section a defendant may plead any matter of defense that is germane to the plaintiff's petition, but a defendant may not bring in separate, distinct, and independent matters.

In Atlanta Northern Ry. Co. v. Harris, 147 Ga. 214, 93 S.E. 210, 212, at page 218, Judge Beck, speaking for the court, quoted from some of the earlier cases, as follows: "A cross-bill * * * must be confined to the subject-matter of the original bill.' Josey v. Rogers, 13 Ga. 478. 'A cross-bill is a bill brought by a defendant against a complainant or other parties in a former bill depending, touching the matters in question in that bill.' McDougald v. Dougherty, 14 Ga. 674. 'The rule in equity is that the matter contained in the cross-bill must be germane to the matter in the original bill.' Brownlee v. Warmack, 90 Ga. 775, 17 S.E. 102.' In State v. Callaway, 152 Ga. 871, 111 S.E. 563, it was said that a cross-petition seeking to introduce new and distinct matters is subject to dismissal on demurrer. The same rule is stated in Johnson v. Stancliff, 113 Ga. 886, 39 S.E. 296; Wood v. Hayes, 189 Ga. 658, 7 S.E.2d 256; Collier v. DeJarnette Supply Co., 194 Ga. 129, 20 S.E.2d 925; and Lankford v. Milhollin, ...