Green v. Spires

• Court: Georgia Supreme Court
• Writing for the Court: JENKINS, Justice.
• Citation: Green v. Spires, 189 Ga. 719, 7 S.E.2d 246 (Ga. 1940)
• Decision Date: 24 February 1940
• Docket Number: 13117.
• Parties: GREEN v. SPIRES et al.

7 S.E.2d 246

189 Ga. 719

GREEN v. SPIRES et al.

No. 13117.

Supreme Court of Georgia

February 24, 1940

The administratrix of the estate of a deceased surety on a criminal bond brought this petition against the grantee in a sheriff's deed to a tract of land, and against the transferee of such grantee, another person cutting timber from the land, and the sheriff. The prayers were for the cancellation of the deeds as a cloud on title the recovery of the land, damages for the timber cut, and other relief. The original petition alleged that the sheriff's deed, under which the defendants in possession of the land claimed title, was void because it was based on a void judgment against the decedent surety, entered before his death on a scire facias after forfeiture of the bond. The grounds of the alleged invalidity were that the only service of the scire facias on the surety was by leaving it at his home, in the county where the proceeding was pending, that personal service was necessary, and that such service was less than twenty days before the beginning of the appearance term as fixed in the scire facias. The pleaded copies from the record of proceedings show only the following pertinent facts: that the scire facias required appearance on the '1st Monday in October next,' 1933; that the sheriff's return on the scire facias stated: 'I have this day served * * * [the surety] by leaving same at his home' on September 20, 1933; that on October 5, 1934, the judgment was rendered, which recited that, it 'appearing that a scire facias was duly issued and served, and that said defendants have shown no sufficient cause why said bond should not be forfeited, it is therefore * * * ordered * * * that said rule nisi be made absolute, and that judgment be entered against the said defendants' for the amount of the bond. The pleaded portion of the record fails to show whether or not the decedent surety filed any defense or otherwise appeared during the year which intervened from the issuance of the scire facias to the final judgment. Nor does the petition in any wise negative the fact that there was a defense, appearance, or waiver of service by the decedent.

The original defendants filed a general demurrer to the original petition on the ground that it set forth no cause of action. On October 2, 1939, the court entered an order overruling this demurrer. On October 4, 1939, the plaintiff amended her petition by setting forth year's support proceedings made the beneficiaries of the year's support parties to the case, and alleged that the general description in the appraisers' return setting apart 'all real estate' was not intended to include, and did not include the tract of land sued for, by reason of the sheriff's deed and adverse possession thereunder, and other alleged facts. The amendment also prayed relief as to this return against the widow and minor children. After this amendment the original defendants, in possession of the land filed a second demurrer renewing their first demurrer to the original petition as amended, and adding the additional ground that the amended petition showed no title in the plaintiff. On October 4, 1939, the judge entered an order sustaining this second demurrer, and dismissing the petition as amended. The plaintiff brings her bill of exceptions from this last judgment.

Edward F. Taylor, of Macon, and Alex S. Boone, Jr., of Irwinton, for plaintiff in error.

Victor Davidson, of Irwinton, for defendants in error.

Syllabus Opinion by the Court.

JENKINS Justice.

1. 'While it is the rule that 'a judgment overruling a general demurrer to a petition, unless excepted to and reversed, is an adjudication that the petition sets forth a cause of action; and the court may not by indirection deprive the plaintiff of the estoppel he is entitled to urge as against the defendant', Turner v. Willingham, 148 Ga. 274(2), 96 S.E. 565, and cit.; Roles v Edwards, 49 Ga.App. 527, 176 S.E. 106, and cit., it is also the rule that 'an amendment to a petition which materially changes the cause of action, made at any stage of the case, opens the whole petition to demurrer at that time. Aliter, when the amendment makes no material change in the cause of action.' Kelly v. Strouse, 116 Ga. 872, 879, 43 S.E. 280; Robertson v. Tallulah Falls R. Co., 29 Ga.App. 530, 116 S.E. 65. Accordingly, where the plaintiff filed an amendment materially changing the nature of her petition, * * * by setting forth new facts, grounds, and prayers for equitable relief * * *, the previous judgment overruling a general demurrer to the original petition did not preclude the defendant from demurring generally to the petition as amended, or render the former judgment conclusive against her as to the existence of a right of action.' Tingle v. Maddox, 186 Ga. 757(2), 198 S.E. 722, 723; Booth v. Stamper, 10 Ga. 109, 113(2); Code, § 81-1312. See, also, in this connection Gibson v. Thornton, 107 Ga. 545(2), 560, 561, 33 S.E. 895. The general language in cases of the Court of Appeals relied on by the plaintiff in error, such as Equitable Mfg. Co. v. Hill-Atkinson Co., 17 Ga.App. 494(2), 87 S.E. 715, and General Tire & Rubber Co. v. Brown Tire Co., 46 Ga.App. 548(2-b), 168 S.E. 75, 78, that 'while an amendment made by the opposite party may open the pleadings to demurrer anew, it does not open them to new rulings upon the identical questions already previously adjudicated in the same case,' will not be construed as extending to cases such as this where a general demurrer to a petition was overruled, and there was a renewed general demurrer to the amended petition after a material amendment had been filed. But if such language could be so extended in its construction, it must yield, as to any such application, to the holding in Tingle v. Maddox, supra. Nothing was ruled to the contrary in Central of Georgia Ry. Co. v. Waldo, 6 Ga.App. 840, 65 S.E. 1098, where, in only deciding that the judgment overruling a first demurrer was the law of the case because the amendment was immaterial, the ruling was merely that 'a judgment of the court on demurrer, not excepted to, becomes the law of the case; and, unless an amendment to the petition, made subsequent to the judgment on demurrer, materially changes the cause of action, the petition is not again open to demurrer.' Accordingly, the order overruling the first demurrer to this original petition could not operate as the law of the case after the plaintiff filed what was a material amendment and the defendants filed a second demurrer to the petition as thus amended expressly renewing the grounds of their first demurrer. It is therefore necessary to determine whether the judgment dismissing the amended petition on all the grounds of the second demurrer, including...