Coppedge v. Allen

• Decision Date: 14 November 1934
• Docket Number: 10223.
• Citation: 177 S.E. 340,179 Ga. 678
• Parties: COPPEDGE v. ALLEN et al.
• Court: Georgia Supreme Court

177 S.E. 340

179 Ga. 678

COPPEDGE v. ALLEN et al.

No. 10223.

Supreme Court of Georgia

November 14, 1934

Syllabus by the Court.

1. There is no merit in the motion to dismiss the writ of error.

2. The petition as originally drawn was subject to demurrer for misjoinder of causes of action and of parties defendant. The proffered amendment did not cure the defect, but was itself objectionable on several grounds which were duly urged against it. The court erred in allowing the amendment and in not sustaining the demurrer wherein the petition was attacked for such misjoinder.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Petition by S. H. Allen against T. L. Coppedge and W. H. Coppedge. To review a judgment overruling his demurrer to the petition the first-named defendant brings error, making W. H. Coppedge and others parties to the bill of exceptions.

Reversed.

Drennan & Giles, of Atlanta, for plaintiff in error.

H. C Holbrook, J. Mallory Hunt, James R. Venable, J. H. Kennerly E. L. Douglas, and L. C. Dotson, all of Atlanta, for defendants in error.

1. There is no merit in the motion to dismiss the writ of error. A judgment overruling a general demurrer to a petition is a proper matter for a direct bill of exceptions. Civil Code 1910, § 6138; Ramey v. O'Byrne, 121 Ga. 516 (3), 49 S.E. 595; Newton v. Roberts, 163 Ga. 135, 135 S.E. 505; Cooper v. Whitehead, 163 Ga. 662, 136 S.E. 911.

2. The petition as originally drawn was subject to demurrer on the ground that it contained a misjoinder of causes of action and of parties defendant. It was predicated upon separate and distinct contracts which appeared to have been made by the defendants separately and individually, and the causes of action, if any, were not related. "Distinct and separate claims of or against different persons can not be joined in the same action." Civil Code 1910, § 5515. In White v. North Georgia Electric Co., 128 Ga. 539, 58 S.E. 33, the principle of law stated in this section was said to be applicable in equity cases. There must be a "common nexus," Brumby v. Board of Lights & Waterworks, 147 Ga. 592 (3), 597, 95 S.E. 7; Hermann v. Mobley, 172 Ga. 380, 158 S.E. 38. For the purpose of meeting the demurrer, the plaintiff offered an amendment alleging in effect that, notwithstanding the contracts were executed separately by the defendants as individuals, the business conducted was in reality a partnership composed of T. L. and W. H. Coppedge, and that the debts first alleged against each of them separately were "really and truly the obligations of both T. L. and W. H. Coppedge"; but that, if it should be determined that a partnership did not exist, an accounting should nevertheless be had, in order to ascertain what items would be chargeable to each defendant alone. The court erred in allowing this amendment. The amendment is ambiguous, and leaves a doubt as to the exact theory upon which the plaintiff sought to introduce the partnership relation. If he is still relying upon the contracts as agreements by the two separate individuals, he is confronted by the rule that an action is not maintainable against a partnership on the contract of an individual. Wood v. Martin, 115 Ga. 147 (2), 41 S.E. 490; Pope v. Jennings, 34 Ga.App. 496, 130 S.E. 348. On the other hand, if the amendment was intended to aver that the contracts, though executed by individuals separately, were in fact the contracts of a partnership, the plaintiff was attempting to add a new and distinct cause of action, and the amendment was equally objectionable on this ground. This is true for the reason that the contracts referred to in the amendment would be different from the contracts pleaded in the original petition, in that, instead of embodying distinct obligations of separate individuals, they would each create a liability against two persons, and also a liability against the partnership of which such persons were members. See, in this connection, Lamar v. Lamar Drug Co., 118 Ga. 850, 45 S.E. 671; Southern Railway Co. v. Parramore, 119 Ga. 690, 46 S.E. 822; George W. Muller Co. v. Georgia Savings Ass'n, 143 Ga. 840, 85 S.E. 1018; McKenzie v. Miller, 6 Ga.App. 828 (2), 65 S.E. 1071; Mauldin v. Gainey, 15 Ga.App. 353 (2), 83 S.E. 276.

Furthermore the plaintiff sued the defendants as individuals, and, according to the original allegations, there was a patent misjoinder of parties. The plaintiff could not...