English v. Rosenkrantz

• Decision Date: 13 January 1921
• Docket Number: (No. 1900.)
• Parties: ENGLISH et al. v. ROSENKRANTZ. ROSENKRANTZ. v. ENGLISH et al.
• Court: Georgia Supreme Court

150 Ga. 817

105 S.E. 613

ENGLISH et al.

v.ROSENKRANTZ.

ROSENKRANTZ.

v.ENGLISH et al.

(No. 1900.)

Supreme Court of Georgia.

Jan. 13, 1921.

(Syllabus by the Court.)

Certified Questions from Court of Appeals.

Suit by Mrs. Rebie Rosenkrantz against J. W. English and others. A demurrer was sustained to one paragraph of the petition, and amended demurrers were overruled, and both parties brought error to the Court of Appeals, which certified questions to the Supreme Court. Questions not answered.

See, 105 S. E. 292.

The Court of Appeals propounded to the Supreme Court, as questions the determination of which is necessary for a decision in this case, the following:

"Mrs. Rebie Rosenkrantz sued J. W. English, Harry L. English, James D. Robinson, Emily English Robinson, Jennie English Kiser, John K. Ottley, and Harry L. English in his capacity as administrator of the estate of James W. English, Jr., and attached to her petition a certain agreement, entered into July 11, 1900, marked Exhibit A, and which was signed by James W. English, James W. English, Jr., Rebie Lowe English, Emily A. English, Emily English Robinson, Harry L. English, Jennie English, James D. Robinson, John K. Ottley, and John K. Ottley as trustee for Edward English. In her petition she alleged that the terms of said agreement have been violated, resulting in damage to her to the amount of $100,000. Demurrers to the petition were filed. Paragraph 10 of the demurrer, which attacked paragraph 42 of the petition, was sustained, and the portion of that paragraph demurred to was stricken. After the petition was twice amended, the defendant renewed his demurrer to the petition as amended; and the court passed the following order: 'The demurrers of defendant and amended demurrers to the petition as amended coming on to be heard, after argument and consideration thereof, it is ordered and adjudged that said demurrer [demurrers?] as amended be and are overruled.' To this order defendants excepted, and to the order sustaining ground 10 of the demurrer plaintiffs excepted. The records show all pleadings in the case. The questions upon which the Court of Appeals desires instructions are:

"(1) Did the court err in sustaining paragraph 10 of the demurrer to paragraph 42 of the petition, and in striking that portion of said paragraph attacked by the demurrer?

"(2) Is the contract, attached to the petition and marked Exhibit A, without consideration, a nudum pactum, and such as cannot be the basis of a legal action?

"(3) Is the contract just referred to (Exhibit A) contrary to public policy and void? Is it illegal and void for any reason, or is it legal and binding upon all the parties thereto?

"(4) Is the petition subject to the demurrer interposed (grounds 8 and 9) because 'it is nowhere alleged in said petition that the plaintiff was Rebie Lowe English at the date of the death of James W. English, Jr., and became his widow on his death, ' or because 'there are no allegations in said petition averring whether the plaintiff was the widow of James W. English, Jr., when he died, ' or because it is not alleged 'when she ceased to be the wife of James W. English, Jr., or his widow, and when she became the wife of Baron Rosenkrantz'?

"(5) Does the petition in this case as amended show a cause of action? Did the court properly overrule the demurrer to the petition as amended?"

Brewster, Howell & Heyman and Mark Bolding, all of Atlanta, for plaintiffs.

V. A. Batchelor and King & Spalding, all of Atlanta, for defendants.

BECK, P. J. This court cannot undertake to answer the questions stated above. After giving them careful consideration, we are satisfied that the questions are not of the character which the Court of Appeals is authorized to certify to this court. In the case of Lynch v. Southern Express Co., 146 Ga. 68, 90 S. E. 527, it was said:

"With a view of preserving uniformity of decision, the Constitution provides for the certifying of constitutional questions to the Supreme Court, and further provides that 'the Court of Appeals may at any time certify to the Supreme Court any other question of law concerning which it desires the instruction of the Supreme...