Crutcher v. Crawford Land Co.
| Decision Date | 08 October 1964 |
| Docket Number | No. 22603,22603 |
| Citation | 220 Ga. 298,138 S.E.2d 580 |
| Parties | Ruth CRUTCHER v. CRAWFORD LAND COMPANY, Inc., et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The petition being against several defendants and charging numerous acts of wrong doing, none of which are common to all, is multifarious, and it was not error to sustain the demurrers raising this question. For the same reason of multifariousness, it was not error to refuse to make another party similarly charged with separate and independent acts a party defendant.
2. Where the petition failed to allege a cause of action against two of the defendants for any wrong doing whatever, their general demurrers were properly sustained.
3. Where, on the hearing of a defendant's motion for summary judgment, movant introduced affidavits conforming with the requirements of the Summary Judgment Act, and thereby proved the plaintiff had no right to recover, and the plaintiff offered no evidence, summary judgment was properly rendered. The requirement of the Act that on such a hearing the pleadings must be considered, does not make the pleadings evidence but merely shows the causes alleged in order that by comparison with the evidence it can be determined if the movant should prevail.
This is an alleged trespass and damage suit case resulting from the alleged increasing of the flow of surface water upon the property of the plaintiff by the defendants as follows:
(1) As to defendant Crawford Land Company by developing a subdivision on land immediately in the rear of the plaintiff on higher ground and causing three houses to be constructed thereon and trees, underbrush and debris, which retained surface water, to be removed; digging a ditch with D. L. Knox immediately to rear of plaintiff to catch and impound the surface water without constructing a storm sewer; and digging other ditches to channel the surface water to this spot; and filing in the land with D. L. Knox in the construction of two houses so that surface water would flow around the house and down onto plaintiff's land; together with D. L. Knox and Paul L. Hatchett, closing a street and constructing a house thereon so that greater amounts of surface water would then flow on plaintiff's land; and having sold some of the lots still owns some of the lots on which surface water gathers and drains in an unnatural and excessive manner due to dirt, rocks and other debris thereon.
(2) As to defendant D. L. Knox, he with Crawford Land Company dug a ditch to catch and retain surface water and did not install storm sewers, constructed two houses, and filled in land so as to cause surface water to flow around two houses; and together with Paul L. Hatchett and Crawford Land Company built one house in the center of an old street, 'so that greater amounts of surface water would then flow on plaintiff's land.'
(3) As to defendant Paul L. Hatchett, he, together with D. L. Knox and Crawford Land Company, closed a street and built one house in the center of the street so that greater amounts of surface water would then flow onto plaintiff's land, and he now owns and occupies a house in this subdivision.
(4) Defendant Abrams now owns and occupies a house in this subdivision. But by amendment it was added that he, together with K. & V. Construction Co., Inc., caused trees, underbrush and debris to be removed and the surface of the land to be excavated, landscaped and changed to increase the flow of surface water onto the plaintiff's land thereby acting in concert with every other defendant.
(5) Defendant Franklin, in addition to owning and occupying a house in the subdivision as alleged above, is hauling in and placing dirt on his property 'which will further harm, damage and injure plaintiff's property.' However, by amendment, the same allegation as shown in regard to K. & V. Construction Co., Inc., and Abrams was made with reference to this defendant.
(6) By amendment, plaintiff sought to make K. & V. Construction Co., Inc., a party since it purchased lots in the subdivision, cut down trees, shrubbery, and moved debris and excavated for construction of houses on these lots which were higher than plaintiff's property so that natural surface water flowed therefrom in the manner set forth in this petition in increased amounts; and together with Abrams and Franklin 'caused trees, underbrush and debris to be removed and the surface of the land excavated, landscaped and changed to increase the flow of surface water onto plaintiff's land,' thereby acting in concert with every other defendant.
To the sworn petition, general and special demurrers were filed by the defendants, including special demurrers as to misjoinder of the parties and causes of action and multifariousness as to the defendants Knox and Hatchett. Thereafter, the court sustained the special demurrers as to Knox and Hatchett, sustained certain special demurrers as to Crawford Land Company, sustained the general demurrers of Abrams and Franklin; allowing 20 days in which to amend as to each of these parties; but no amendment was filed within the period of time allowed. In the meantime, Crawford Land Company moved for summary judgment, attaching affidavits thereto in support of its motion. After the period of time allowed for amendment, plaintiff amended seeking to make K. & V. Construction Company, Inc. a party to the suit and sought to meet the sustained demurrers mentioned above. On motion to dismiss by Knox and Hatchett because no amendment offered within 20 days, the court dismissed the petition as to these parties; and on the same date for the same reason dismissed the petition as to defendants Abrams and Franklin. Thereafter, on the same date the court sustained the motion for summary judgment, after a hearing, the plaintiff not having filed any defense or rebuttal affidavits, depositions, or other evidence, relying solely on his sworn petition. In addition, on this date, the court denied the motion to make K. & V. Construction Company, Inc. a party. The exceptions are to all these judgments which were final as to the parties concerned.
Alton T. Milam, Atlanta, for plaintiff in error.
Grant, Spears & Duckworth, Ronald Reid, Alston, Miller & Gaines, W. M. Mathews, Jr., Atlanta, for defendants in error.
1. The foregoing statement of facts reveals that in no single alleged act of wrong doing, did all of the defendants participate. On the contrary it shows that some defendants acted together to do certain things and some acted alone to do certain things, all of which are lumped together to make a case of alleged wrong doing. There is nothing in the lengthy and imprecise amended petition by which the amount of liability of any defendant can be ascertained and separated from the others. The amended petition is a glaring case of multifariousness--which the law for good reason does not allow. 'Distinct and separate claims of or against different persons shall not be joined in the same action.' Code § 3-110; Oxford Chemical Corp. v. Detrex, etc., Industries, 217 Ga. 126, 121 S.E.2d 130. Nor does the fact that this case is one in equity allow such multifariousness. Van Dyke v. Van Dyke, 120 Ga. 984, 988, 48 S.E. 380; White v. North Georgia Electric Co., 128 Ga. 539, 58 S.E. 33; George W. Muller, etc., Co. v. Southern Seating, etc., Co., 147 Ga. 106, 113, 92 S.E. 884; Wilson v. Ward, 149 Ga. 325, 329, 100 S.E. 205; Payne v. West Point Wholesale Grocery Co., 151 Ga. 46,...
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