Bray v. Peace
| Decision Date | 01 December 1908 |
| Citation | 62 S.E. 1025,131 Ga. 637 |
| Parties | BRAY et al. v. PEACE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
In a suit against an individual, it was not erroneous for the judge to refuse to entertain a plea offered by a firm of which the individual was a member, where neither the firm nor the other member thereof was declared against or otherwise appropriately made a party to the suit.
[Ed Note.-For other cases, see Partnership, Dec. Dig. § 202 [*]]
If it appears on the face of the petition that the suit is brought against an individual for the debt of a partnership of which he is a member, objection may be raised by demurrer. If it does not so appear, but the defendant claims that the suit against him as an individual is based upon a partnership liability, and that the other partner is a necessary party the point should be raised by a plea in abatement.
[Ed Note.-For other cases, see Parties, Cent. Dig. §§ 134-138; Dec. Dig. § 84; [*] Pleading, Cent. Dig. § 494.]
Such a plea is a dilatory plea, and must be filed under oath at the first term of court. Civ. Code 1895, § 5058; Merritt v. Bagwell, 70 Ga. 578, 585.
[Ed. Note.-For other cases, see Abatement and Revival, Cent. Dig. § 500; Dec. Dig. § 81. [*]]
Partners are each liable for the debts of the partnership; and if one be sued upon such a debt, and no objection for nonjoinder is duly raised by demurrer or plea, it furnishes to the defendant sued no defense to prove that he contradicted the indebtedness on behalf of a firm of which he was a member, and that he has a partner who is not before the court. Hirsch v. Oliver, 91 Ga. 554 (4), 18 S.E. 354; 15 Enc. Pl. & Pr. 928.
[Ed. Note.-For other cases, see Partnership, Cent. Dig. § 417; Dec. Dig. § 216. [*]]
In a suit for the price of personal property, where the petition alleged that the defendant had been the highest and best bidder at an administrator's sale, and had bought the property from the plaintiff at a certain price, and that it had been delivered to him, mere vague statements in the unsworn answer, to the effect that the defendant denied such allegations, but admitted that a partnership composed of himself and another had bought the property, and it had been delivered to them, were not sufficient to meet the requirements of the law as to a plea in abatement.
[Ed. Note.-For other cases, see Pleading, Dec. Dig. § 106. [*]]
Under the rulings contained in the previous headnotes, a verdict against the defendant was inevitable, and, in the absence of a proper plea in abatement, there was no error in rejecting evidence offered by the defendant that the purchase was made by the defendant for his firm, or in directing a verdict for the plaintiff.
Error from Superior Court, Clayton County; W. C. Worrill, Judge.
Action by J. F. Peace, administrator, against J. J. Bray. Judgment for plaintiff, and defendant brings error. Affirmed.
Peace, administrator, brought suit against J. J. Bray, to which an answer was filed by the defendant. The firm of J. J. Bray & Son, a firm composed of the defendant and another, also filed a plea, but the other partner did not become a party, nor ask to be made such. In this plea, by way of cross-action, the firm sought to recover a judgment against the plaintiff. On motion such plea was stricken. After the plaintiff had made out his case, the defendant offered to testify that he bought the property for his firm, composed of himself and his son, and that this was known to the plaintiff. On objection this evidence was rejected, and a verdict was directed for the plaintiff. The defendant excepted.
J. F. Golightly, for plaintiff in error.
W. L. Watterson and Jos. W. & John D. Humphries, for defendant in error.
The headnotes sufficiently deal with the case; but it will not be out of place to consider the pleadings for the purpose of showing that the plea of the defendant to which reference was made in the fifth headnote was not a plea in abatement on account of nonjoinder of parties. The suit was for the purchase price of personal property sold at administrator's sale, which was alleged to have been bid in by the defendant, and for which he refused to pay. The fourth paragraph of the petition was as follows: "Petitioner further says that at said sale one J. J. Bray, of this county, was the highest and best bidder for 186 3/5 bushels of corn at the price of 67 cents per bushel; also of 635 pounds of hay at the price of 51 cents per 100; and that the same was knocked off to him at said price, which said corn and hay at the price of his bid amounted to the sum of $128.26." The fifth paragraph of the petition was as follows: "That a few days after said sale he, petitioner, delivered the said corn and hay to the said J. J. Bray, and, after the same was so delivered to him, petitioner demanded the money for the same, and the said J. J. Bray refused to pay for same; that the corn and hay were worth the price that he bid and was to pay, and he still fails and refuses to pay for the same." The answer to the fourth paragraph of the petition was as follows: "Defendant denies paragraph No. 4 of the petition, except he admits that J. J. Bray & Son, a partnership composed of J. J. Bray and W. C. Bray, bought the property therein set out, but says he is not liable individually." The answer to the fifth paragraph was as follows: "Defendant denies paragraph No. 5 of the petition, except he admits that the property was delivered to J. J. Bray & Son, and he admits that the property was worth the price bid for the same." The answer was not verified. This comprises all the different parts of the answer which could possibly be construed as a plea of nonjoinder.
Under our present system of pleading, the plaintiff is required to plainly, fully, and distinctly set out his cause of action in distinct and orderly paragraphs. Civ. Code 1895, § 4961. The defendant is required to distinctly answer each paragraph of plaintiff's petition, and is not allowed to file a mere general denial. Civ. Code 1895, § 5051. He may include in his answer different grounds of defense against the action, as for instance, a denial that he owes the debt alleged by the plaintiff, and that it is barred by the statute of limitations, and that it has been paid; but each of such defenses must be distinctly made. Civ. Code 1895, § 5052. Under the denial of the allegations of the plaintiff's petition, no other defense is admissible except such as disproves the plaintiff's action. All other matters in satisfaction or avoidance must be specially pleaded. Civ. Code 1895, § 5053. The distinction between dilatory pleas and pleas to the merits has not been abolished by our pleading act of 1896, or by the uniform procedure act of 1887. Civ. Code 1895,§ 5049. An answer to the plaintiff's petition, admitting or denying the paragraphs thereof, is pleading to the merits; nor is it otherwise because such an admission or denial may be qualified by some explanation or partial admission. It is still declared by our Code that the defendant may either demur, plead, or answer to the petition, or may file one or more, or all, these defenses at once, without waiving the benefit of either; and that he may file two or more pleas to the same action. But it is declared that "in all cases demurrer, pleas, and answer 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." Civ. Code 1895, § 5047. And also that "no dilatory answer shall be received or admitted unless an affidavit shall be made to the truth thereof, and must be filed at the first term." Civ. Code 1895, § 5058. With the exception of pleas specially required to be sworn to, such as dilatory pleas of non est factum, generally pleas and answers are not required to be verified, except where the petition is verified by affidavit. Civ. Code 1895, § 5055. Construing these sections together, it is evident in our opinion that it is the intention of the law that dilatory pleas shall be expressly filed as such, at the first term of the court, under oath, and that they are to be tried and disposed of before the trial on the merits. To pick out from an unsworn answer clauses or fractions...
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