Crowley v. Hughes

• Decision Date: 26 November 1946
• Docket Number: No. 31438.,31438.
• Citation: 40 S.E.2d. 570
• Parties: CROWLEY. v. HUGHES.
• Court: Georgia Court of Appeals

40 S.E.2d. 570

CROWLEY.

v.HUGHES.

No. 31438.

Court of Appeals of Georgia, Division No. 2.

Nov. 26, 1946.

Syllabus by the Court.

1. The motion to dismiss the writ of error is denied; the motion to amend is granted.

2. The demurrer to the jurisdiction of the court will be treated as abandoned.

3. Purchasers of automobiles bringing an action for violation of the Emergency Price Control Act, seeking treble damages for violation of ceiling price,

must negative statutory exception by alleging and proving that they purchased the automobile for use and consumption other than in the course of trade or busi-

Error from Civil Court, Fulton County; Robert Carpenter, Judge.

Action by James C. Hughes against James W. Crowley, trading as Northern Car Company, for an alleged violation of the Emergency Price Control Act. To review a judgment overruling defendant's demurrer, defendant brings error.

Reversed.

James C. Hughes brought an action in the Civil Court of Fulton County against James W. Crowley, trading as Northern Car Company, for an alleged violation of the Emergency Price Control Act. Those allegations of the petition material to a determination of the case are substantially these: The defendant is indebted to the plaintiff in the sum of $1458, plus attorney's fees; on or about March 26, 1946, the defendant was engaged in business as a used car dealer and on that date the defendant offered for sale and sold to the plaintiff a 1941 Chevrolet convertible coupe automobile for the sum of $1700; the plaintiff paid cash for the automobile the sum of $486, gave the defendant his check in the amount of $614, and executed notes for the remainder in the amount of $600; at the time defendant sold the automobile to the. plaintiff, the ceiling price as established by the Office of Price Administration was $1214, and the defendant required and demanded of the plaintiff the sum of $486 in excess of the ceiling price; and under the laws and statutes applicable thereto the defendant is liable to the plaintiff for three times the amount of the excess over and above the ceiling price which the defendant charged and received from this plaintiff together with $500 as reasonable attorney's fees. The defendant filed a general demurrer on the ground that the petition set forth no cause of action and demurred specially upon the ground that the allegations of the petition shows that the penalty attempted to be collected is quasi-criminal, and not civil in nature, and the Civil Court of Fulton County lacked jurisdiction to try the cause. The court overruled the demurrer and the defendant excepted, bringing the case here on appeal. The plaintiff filed his motion to dismiss the bill of exceptions for defendant's failure to designate any person as plaintiff in error or defendant in error.

Robert T. Efurd, of Atlanta, for plaintiff in error.

Harold Sheats, of Atlanta, for defendant in error.

FELTON, Judge.

1. The motion to dismiss the writ of error on the ground that there was a failure to designate parties to the bill of exceptions is without merit and is denied. Tatum v. Moss, 58 Ga.App. 434, 198 S.E. 814; Joiner v. Singletary, 106 Ga. 257, 32 S.E. 90; Rosenheim Shoe Co. v. Home, 10 Ga.App. 582, 73 S.E. 953. The bill recites that it is filed in the case of James C. Hughes against James W. Crowley, trading as Northern Car Company, and the court below passed an order overruling the defendant's general demurrer to the plaintiff's petition and to this ruling the plaintiff in error excepted. It was manifest from these recitals who the parties were. Moreover counsel for the plaintiff acknowledged service of the bill of exceptions as attorney for the defendant in error and the defendant moved to amend his bill, setting forth the parties by name. See Code, § 6-913; Martin v. J. M. McAfee & Co., 31 Ga.App. 690, 122 S.E. 71; Johnson v. Giraud, 191 Ga. 577, 13 S.E. 2d 365. The amendment to the bill of exceptions is allowed.

2. There appearing in the brief for the plaintiff in error no reference to the special demurrer to the jurisdiction, nor any general insistence upon all of the assignments of error, this court will treat this ground as abandoned.

3. "Irrespective of whether a public or private statute must be pleaded, in all cases, one who seeks the benefit of a statute must, by averment and proof, bring himself within its provisions. Thecomplaint must plead every fact essential to the cause of action under the statute, " 41 Am.Jur, § 92, p. 355, and this may not be...