Collier v. DeJarnette Supply Co.

• Decision Date: 20 May 1942
• Docket Number: 14108.
• Citation: 20 S.E.2d 925,194 Ga. 129
• Parties: COLLIER v. DEJARNETTE SUPPLY CO. et al.
• Court: Georgia Supreme Court

20 S.E.2d 925

194 Ga. 129

COLLIER v. DEJARNETTE SUPPLY CO. et al.

No. 14108.

Supreme Court of Georgia

May 20, 1942

Rehearing Denied June 17, 1942.

Syllabus by the Court.

An answer in the nature of a cross-action, which merely seeks to introduce new and distinct matter not germane to the original suit, is properly stricken on demurrer.

A petition was filed by DeJarnette Supply Company et al owners of what was called preferred stock of a corporation known as Mayflower Apartments, Inc., against said corporation and its officers, and against Anjaco, Inc., another corporation, and all of its stockholders, one of whom specially named as a defendant being Andrew J. Collier, the plaintiff in error. Anjaco Inc. was the holder of a second security deed on the apartment-house property. Originally the petition prayed for various relief, and on demurrer it was held by the trial court to be multifarious. Several amendments to the petition were filed, and as finally amended it became a suit praying for an accounting from the officers of Mayflower Apartments, Inc., and for a money judgment against them on account of the alleged acts charged in the petition as amended. Andrew J. Collier, a stockholder of Anjaco, Inc., filed his answer denying that the petitioners were entitled to any of the relief prayed for, except that H A. Minor, who was president of Mayflower Apartments, Inc. should be required to file an accounting. His amended answer alleged that the Mayflower Apartments' security deed, held by Anjaco, Inc., should have been in the sum of $16,000 instead of $15,000, as alleged by him; that the officers and directors of Anjaco, Inc., had refused to take any action to enforce the security deed; that they were acting against the best interests of the company; that he made a personal demand on them, and on the attorney for the directors, for a change in the recited amount of the security deed and for its foreclosure, but to no effect; and he prayed that the security deed be foreclosed as an equitable mortgage, and that the money derived from such foreclosure be paid into the registry of the court, subject to its orders. On November 15, 1941, the petitioners dismissed their action. On December 4, 1941, Andrew J. Collier filed a second amendment to his answer, alleging that the dismissal of the suit was due to a conspiracy on the part of the petitioners, all of whom owned stock in Mayflower Apartments, Inc., and on the part of all of the stockholders of Anjaco, Inc., except himself, a minority stockholder. He charged that Anjaco, Inc., canceled its security deed which it held on Mayflower Apartments, Inc., for $12,500, when it knew that the amount due thereon was nearly $15,000; and that although this was ratified by a majority vote of the Anjaco stockholders, it was illegal and invalid because contrary to the best interest of that corporation, and resulted in damage to himself, 'who was present and protested.' To Collier's amended answer the defendants in error demurred. On the hearing on December 5, 1941, the court sustained the demurrer and dismissed the amended answer, reciting in its judgment the previous dismissal of the case in which the answer was filed, and holding that the plaintiff in error was not entitled to have the security deed foreclosed as prayed.

W. L. Bryan, Bennett Wimberly, John J. Poole and Poole, Pearce & Graham, all of Atlanta, for plaintiff in error.

Roy S. Drennan, Haas, Gardner, Lyons & Hunt, Stephens, Mitchell, Moise, & Post, Tye, Thomson & Tye, and W. D. Thomson, all of Atlanta, for defendants in error.

GRICE Justice.

Several parties demurred to the answer of Andrew J. Collier as amended, and the same was stricken. The brief in support of the ruling of the trial court challenges the contention of the plaintiff in error that his answer as amended was in fact a cross-action, and denies that it was a proceeding as a minority stockholder in behalf of himself and other stockholders against the corporation and its officers; and contends that if it was, no case is made to authorize him so to proceed. It is unnecessary to consider any of the grounds of demurrer except the one which takes the position that the answer as amended can not be sustained as an action in the nature of a cross-bill. The petition was dismissed on November 14, 1941; and the amendment to the answer of the present plaintiff in error, which it is insisted by his counsel constitutes a cross-action, was filed on October 15, 1941. The original petition, though naming many defendants and seeking much relief, was so amended that it had become in effect a mere suit against Mayflower Apartments, Inc., H. A. Minor, its president, and...