Butler v. Jackson, 36401

• Decision Date: 27 November 1956
• Docket Number: No. 36401,No. 2,36401,2
• Parties: Lillian Page BUTLER, Executrix, v. Menelik JACKSON
• Court: Georgia Court of Appeals

Page 761

95 S.E.2d 761

94 Ga.App. 632

Lillian Page BUTLER, Executrix, v. Menelik JACKSON.

No. 36401.

Court of Appeals of Georgia, Division No. 2.

Nov. 27, 1956.

Lillian Page Butler, as executrix of the estate of Dr. E. E. Butler, filed the following petition against Menelik Jackson:

'1. Menelik Jackson is a resident of the State of Kentucky but is now temporarily sojourning in Fulton County, Georgia, and is the defendant herein named. 2. The defendant is indebted to the estate of Dr. E. E. Butler in the sum of twenty-five hundred dollars ($2500) with interest thereon from December 6, 1952, at six percent (6%) per annum. 3. On said December 6, 1952, defendant obtained from Dr. E. E. Butler twenty-five hundred dollars ($2500) on the promise that Jackson's Inc., a corporation of which he claimed to be president, would secure the payment of said sum by the issuance of bonds with ample security for said amount. 4. Petitioner has no way of knowing what defendant did with said twenty-five hundred dollars ($2500) but defendant was to hold said sum in trust for said E. E. Butler until bonds were executed and delivered, which defendant failed to do. 5. The defendant is personally liable to petitioner for said sum of money with interest.'

On June 7, 1956, the trial court entered the following order upon the defendant's demurrers to the petition:

'The above and foregoing case coming on before me for a hearing on the demurrers as filed by defendant in the above styled case, it is ordered, decreed and adjudged, that paragraph one (1) of said demurrers is hereby sustained, the court being of the opinion that the transaction is not set forth with the particularity required by law, with leave to amend to plaintiff, that plaintiff is hereby given twenty days in which to file said amendment. As to paragraphs two (2) and three (3) of said demurrers, the court does not pass upon them at this time.'

Since the plaintiff either failed or refused to amend, the trial court on July 25, 1956 entered the following order:

'It appearing that the demurrers of defendant came on for hearing on June 7, 1956 before this court, and it appearing that this court entered an order on said date sustaining a general demurrer of defendant to plaintiff's petition and that this court allowed plaintiff a period of twenty days from June 7, 1956 to amend; and it appearing that said twenty-day period has now passed and that the plaintiff has declined to amend; it is therefore ordered and adjudged that the general demurrer of defendant be, and the same is hereby finally sustained and the petition of plaintiff dismissed.'

The plaintiff assigns error here upon both of the trial court's rulings upon the demurrers.

R. F. Schuder, Wheeler, Robinson & Thurmond, Gainesville, for plaintiff in error.

Romae L. Turner, Atlanta, for defendant in error.

Syllabus Opinion by the Court

CARLISLE, Judge.

1. 'Where, in ruling upon demurrers, the trial court allows time for the filing of an amendment, such court shall render a judgment on the sufficiency of the pleadings after the expiration of the time allowed for amendment which shall supersede the earlier judgment on the demurrers, and such earlier judgment or judgments shall not be subject to exception or review.' Weinstein v. Rothberg, 87 Ga.App. 94, 73 S.E.2d 106, 107; Sellers v. City of Summerville, 88 Ga.App. 109, 76 S.E.2d 99; Aiken v. State Farm Mutual Automobile Ins. Co., 88 Ga.App. 131, 76 S.E.2d 141; Pfeifer v. Yellow Cab Co. of Atlanta, 88 Ga.App. 227, 76 S.E.2d 229; Godwin v. Hudson, 93 Ga.App. 858, 93 S.E.2d 379. The assignment of error contained in the bill of exceptions upon the judgment of June 7, 1956 sustaining the general demurrer to the petition and allowing time within which to amend, is not subject to review.

2. 'A petition either in law or in equity must plainly, fully, and distinctly set forth a cause of action (Code 1933, § 81-101)...