Bowles v. White, 16919
| Decision Date | 11 January 1950 |
| Docket Number | No. 16919,16919 |
| Citation | 57 S.E.2d 547,206 Ga. 433 |
| Parties | BOWLES v. WHITE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A general demurrer goes to the whole pleading to which it is addressed, and should be overruled if any part thereof is good in substance. In the present case, and for reasons stated in the corresponding division of the opinion, the allegations of the defendant's cross-action were sufficient to state a cause of action for some of the relief sought thereby and, accordingly, the plaintiff's motion in the nature of a general demurrer to strike it should have been overruled, and it was error not to do so.
2. Where the trial judge erroneously strikes the defendant's pleadings, as in this case, all that happens thereafter on the trial is necessarily nugatory.
Ed White, as administrator of Miss Mamie White's estate, brought a suit in the Superior Court of Hall County, Georgia, to recover from Mrs. Julia Rea Bowles an undivided one-half interest in a certain house and lot located in the City of Gainesville, and prayed for immediate possession and a decree of title. There was no prayer for rents or general relief. The defendant filed an answer and a cross-action. By her answer she admitted that the plaintiff is the administrator of Miss White's estate; that she is in possession of the property sued for, and has been since the death of the plaintiff's decedent; that she has paid no rent since May 31, 1948; and that the plaintiff would be entitled to recover from her the property sued for, except for these facts which she set up in her cross-action as amended, to wit: The property in question was originally the home place of James Henry White, the defendant's paternal grandfather. The defendant's mother died when she was a very small girl, and she was reared in the home here involved by her grandparents and by her two maiden aunts, Misses Mamie and Pearl White. James Henry White by his will, but subject to a life estate in his widow, gave the property in question equally to his two daughters (Mamie and Pearl White). He gave his two sons $1 each. His will was duly probated in Hall County. Her grandfather died in 1929 and her grandmother in 1935. After the death of her grandparents, the defendant and her two aunts continued to make the property in question their home. Neither of her aunts ever married. Miss Pearl White never had any employment outside of the home and never earned any money, she not being in good health, especially during the latter part of her life. Miss Mamie White worked in a store at Gainesville until 1936, when she gave up her employment because of poor health. When the defendant finished high school, she went to work in a ten-cent store at Gainesville and contributed her earnings toward the support of her two aunts. None of the other relatives made any contributions for that purpose. The defendant married August 2, 1941, and she and her husband fixed up a room in the home so that they could be near, look after and care for the defendant's elderly aunts. During February, 1942, the defendant and her husband moved out of the family residence, but the defendant continued to look after her aunts and regularly ministered to their needs, even to the extent of neglecting her own home. During April, 1943, the defendant and her husband gave up their home and moved back to the home of her aunts so that she could better care for them. They (the defendant and her husband) fixed up an apartment in the home for their separate occupancy and regularly thereafter paid rent for the same, and in addition thereto contributed substantially, both in money and personal services, toward the care and support of their aunts. After the defendant's husband entered military service, she continued to pay rent on her apartment, but spent most of her time with her aunts, they being old and in poor health. After the death of Miss Pearl White on January 15, 1945, the defendant, in order to raise more money for the upkeep of the home and for the support of her surviving aunt, rented her apartment and spent all of her time taking care of the home and of her aunt, who, due to advanced age and extremely poor health, had to be cared for as a child. In 1947, after the defendant's husband had returned from overseas service, and received his discharge, and feeling that her aunt's other relatives should assume at least a part of the responsibility for her care and support, the defendant and her husband decided to buy a lot and build them a home, using the money which he had received for his military service for that purpose. Her aunt, when informed of this, asked the defendant not to buy a lot, but to spend what money she and her husband had on her home and to stay with and care for her until the aunt died, and at that time she told the defendant that, if she would do this, the aunt would make a will devising her home place to the defendant as her own. At that time her aunt understood and believed that she owned the entire interest in the home and the defendant thought so too. The defendant accepted her aunt's proposition, and she and her husband spent at least $1,000 in repairing the home, and, further complying with her part of the agreement, she remained with and cared for her aunt until she died on May 31, 1948, rendering her such personal, affectionate, and considerate care and attention as the necessities of an old lady in extremely poor health required, and such services as could not readily be procured elsewhere.
It was further alleged in the cross-action that the defendant's aunt, during September, 1947, in an attempt to carry out her part of the agreement respecting the property in question, had an attorney to prepare her a will by the terms of which she gave the defendant all of the property in controversy; but on being advised by the scrivener that she did not own the entire property, she delayed signing her will until she could get full title to all of it, but she died before this was accomplished, thus leaving her will unsigned and her part of the agreement unperformed. It was further alleged that Miss Mamie White, at the time of her death, owned only an undivided two-thirds interest in the property, and for that reason her administrator could not specifically perform her contract as to the remaining one-third undivided interest therein; that the interest not owned by her aunt's estate was reasonably worth $4,000, and consequently she had been damaged by the plaintiff's decedent to that extent, and as compensation for the injury she should have a money judgment against the plaintiff for that amount. The defendant further alleged that she paid her aunt's funeral expenses amounting to $375; that she had not been reimbursed; and that she was entitled to recover that amount from the plaintiff.
The prayers of the cross-action were: (1) that the relief sought by the plaintiff be refused; (2) that title to an undivided two-thirds interest in the premises in question be decreed in her, and the plaintiff be required to execute and deliver to her a deed for the same; (3) that the defendant have judgment against the plaintiff as administrator of Miss Mamie White's estate for $4,000, or for such other amount as the jury might find the value of the undivided one-third interest in the property not owned by the plaintiff's decedent to be; (4) that the defendant have judgment against the plaintiff as such administrator for $375 for the funeral expenses of her aunt, which she paid; and (5) for general relief.
The plaintiff made a motion in the nature of a general demurrer to strike the defendant's answer and cross-action and renewed it after the allowance of an amendment thereto upon these grounds: (1) the answer and cross-action set forth no defense; and (2) the facts alleged in the cross-action as amended are not germane to the plaintiff's suit. The court sustained the motion and struck the answer and...
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