Battle v. Warren County Fertilizer Co.

• Decision Date: 21 May 1923
• Docket Number: 3475.
• Parties: BATTLE ET AL. v. WARREN COUNTY FERTILIZER CO. ET AL.
• Court: Georgia Supreme Court

118 S.E. 362

155 Ga. 650

BATTLE ET AL. v. WARREN COUNTY FERTILIZER CO. ET AL.

No. 3475.

Supreme Court of Georgia

May 21, 1923

Syllabus by the Court.

All demurrers to petitions shall be filed and determined at the first term of court, unless continued by the court or by consent of parties. Where a defendant at the appearance term of court filed a general demurrer to a petition, he could not, at the second term, amend such general demurrer by adding grounds of special demurrer.

An execution issued on a judgment, and signed with the name of the clerk of the superior court, but not signed by the clerk or by his deputy clerk or in his immediate presence and by his direction and authority, is void.

A petition by the defendant in execution and several vendees to whom such defendant conveyed lands before the date of the execution, against the plaintiff in fi. fa. and the sheriff of the county, to enjoin the levy of the fi. fa. from proceeding, shows such community of interest on the part of the plaintiffs as will entitle them to bring a joint suit for that purpose, in order to avoid a multiplicity of suits.

The petition set out an equitable cause of action, and the court below erred in dismissing it on general demurrer.

Error from Superior Court, Warren County; P. B. Johnson, Judge pro hac.

Suit by B. C. Battle and others against the Warren County Fertilizer Company and others. Judgment for defendants on demurrer, and plaintiffs bring error. Reversed.

L. D McGregor, of Warrenton, for plaintiffs in error.

M. L Felts, of Warrenton, for defendants in error.

HILL J. (after stating the facts as above.)

1. Civil Code 1910, § 5630, provides that:

"In all cases demurrer, pleas, and answers shall be disposed of in the order named; and all demurrers and pleas shall be filed and determined at the first term, unless continued by the court, or by consent of parties."

In Neil v. Dow Law Bank, 138 Ga. 158, 74 S.E. 1027, this court held that:

"Where an equitable petition is defective because of a misjoinder of parties, the same is subject to a special demurrer filed at the first term; but the petition should not be dismissed on a motion in the nature of a general demurrer made at the trial term and based upon this ground alone. Tice v. Ga. Railroad &c. Co., 124 Ga. 459, 52 S.E. 916."

And in City Council of Augusta v. Lombard, 101 Ga. 724 (2) 28 S.E. 994, it was held that:

"Where a defendant at the appearance term filed a general demurrer to a declaration, he could not at the second term amend such general demurrer by adding thereto grounds of special demurrer; and the filing of the special demurrer after the time allowed by law is a good reason why the court should overrule and disallow it."

We are of the opinion that the trial judge erred in allowing the demurrer to be amended at the trial term, and therefore the special demurrer which raised the question of misjoinder of parties could not be properly considered.

2. The general demurrer raises the question as to whether the petition set out a cause of action. The petition alleged among other things, that the sheriff of Warren county had levied an execution in favor of the Warren County Fertilizer Company against Mrs. Bessie Cason Battle, on certain described property set out in the petition, and that about the time the judgment was obtained Mrs. Battle made several conveyances of property as security, conveying different tracts of land, which was levied on under the execution, to different plaintiffs as set out in the petition. The execution was attacked by all of the plaintiffs as being void for various reasons, among others, that the date on which it had been entered upon the general execution docket was changed from April 14 to April 12, 1921, and that there was no note or entry or certificate of the change in the date of its entry upon the general execution docket made by the clerk of the superior court, as to why such change in the date was made. It was also alleged that the execution was void, because it was executed by Miss Opal Kitchens, who was not a deputy clerk in the office of the clerk of the superior court of Warren county, by signing the execution in the name of "A. E. Massengale," clerk, and that it was not signed by Miss Kitchens by direct authority of A. E. Massengale, clerk, and in his immediate presence and under and by his immediate direction and authority. Here, then, is a community of interest on the part of all the plaintiffs, in order to determine whether or not...