Hughes v. Jackson
Decision Date | 04 June 1964 |
Docket Number | No. 40480,No. 3,40480,3 |
Citation | 109 Ga.App. 804,137 S.E.2d 487 |
Parties | Robert W. HUGHES v. James E. JACKSON |
Court | Georgia Court of Appeals |
Syllabus by the Court
1. The petition is not subject to general demurrer.
2. Where a special demurrer makes the mistake of including in its attack averments of the petition that are not subject to the criticism made, it should be overruled because of its own imperfection.
3. Where a special demurrer raises two objections to a portion of a petition one of which is deficient, an appellate court will not consider the other as the deficient part renders the whole imperfect.
4. A special demurrer must not only point out the defect in the pleading attacked but must also specially state the reason why the pleading is subject to it.
5. Where a portion of a special demurrer is erroneous, the whole must fall.
6. There is a distinction between a special demurrer which seeks to eliminate superfluous matter from a petition and one which objects to allegations for vagueness, uncertainty and indefiniteness. The former accomplishes its purpose when it is sustained. The sustaining of the latter amounts to nothing more than to require the plaintiff to make his statements clear, certain and definite by inserting the necessary matter. A special demurrer which confuses the two is defective.
James E. Jackson brought his petition against Robert W. Hughes to recover upon an alleged agreement in compromise of a controversy between Jackson and Hughes and one John Hamilton, praying for judgment in the principal sum of $4,000. Hughes, as defendant, filed a general demurrer and numerous special demurrers. All demurrers were overruled by the court below. Hughes now excepts to the judgment overruling his demurrers.
The main allegations of the petition are as follows: '[P]laintiff, defendant and John Hamilton organized a corporation under the name and style of North Atlanta Contracting and Improvement Co., Inc. * * * [and] subscribed to the capital stock of the corporation equally.' '[T]he Hardin group purchased the entire corporation known as North Atlanta Contracting and Improvement Co., Inc. for $60,000.' 'Plaintiff demanded of defendant and John Hamilton that he be paid his one-third share of the profits after deducting the share agreed to be paid to Howell. * * *'
Walter W. Calhoun, Richard H. Monk, Jr., Atlanta, for plaintiff in error.
Dan E. McConaughey, Davis & Stringer and Thomas O. Davis, Decatur, for defendant in error.
1. The redundant petition here sets forth a compromise agreement alleging duties arising under the agreement and its breach by the defendant. It is well settled by decisions of our appellate courts that compromise agreements are enforceable. Hale v. Lipham, 61 Ga.App. 191, 192, 193, 6 S.E.2d 115.
"A cause of action is made up of two elements; namely, a duty and a breach of it' (Bell v. Fitz, 84 Ga.App. 220, 223, 66 S.E.2d 108, 110); and, 'Where a petition sets out a cause of action under any legal theory, it is good as against general demurrer.' Hall v. John Hancock Mutual Life Ins. Co., 50 Ga.App. 625(2). 179 S.E. 183, 184; Yopp v. Johnson, 51 Ga.App. 925(2), 181 S.E. 596. As against a general demurrer general allegations are sufficient. [J. C. Pirkle Machinery Co., v. Lester, 79 Ga.App. 512 (54 S.E.2d 298)] Morgan v. Limbaugh, 75 Ga.App. 663, 44 S.E.2d 394.' Clarke County School District v. Madden, 99 Ga.App. 670, 673, 110 S.E.2d 47, 51.
Medlock v. Aycock, 16 Ga.App. 813(1), 86 S.E. 455.
The trial judge did not err in overruling the defendant's general demurrer to the petition.
2. Special demurrers 2 and 3 attack the petition as a whole on the grounds that it is multifarious as it alleges different, distinct, irrelevant, and immaterial matters wholly unrelated to the subject matter of the suit and attempts to join them to set out a cause of action; and through this means the petition in its entirety attempts to set out different, separate and distinct causes of action.
Each of these demurrers is general in its charge and neither delineates any of the allegations of the petition which the demurrant considers different, distinct, irrelevant, immaterial or unrelated to the subject matter of the suit nor does either point out any of the allegations with which the defendant had no connection. Having held in Division 1 that the petition was not subject to general demurrer, it follows that not all of the allegations can be defective. These demurrers, addressed as they are to the petition as a whole necessarily embrace all of its averments in their attack.
If the demurrer makes the mistake of including in its attack averments of the petition that are not subject to the criticism made, it should be overruled because of its own imperfection. McCombs v. Southern R. Co., 39 Ga.App. 716, 724, 148 S.E. 407.
The only cause of action asserted in the petition is for the breach of the compromise agreement.
The court properly overruled...
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Willis v. Hill, 42881
...demurrer itself is not subject to the criticism that it asks for improper relief from the defects complained of (see Hughes v. Jackson, 109 Ga.App. 804, 137 S.E.2d 487), we do not find any inconsistency in or contradiction between the two paragraphs. Enumeration of error No. 3 is without 4.......
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Wren Mobile Homes, Inc. v. Midland-Guardian Co. of Ga.
...Life Insurance Co. v. Doster, 98 Ga.App. 641, 106 S.E.2d 307; Devine v. Geiger, 100 Ga.App. 245, 110 S.E.2d 687, and Hughes v. Jackson, 109 Ga.App. 804, 137 S.E.2d 487. Judgment BELL, P. J., and PANNELL, J., concur. ...
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City of Atlanta v. Donald, 40864
...§ 9-13, p. 223. Thus, these special demurrers do not meet the standard of perfection required for their kind.' Hughes v. Jackson, 109 Ga.App. 804, 808, 137 S.E.2d 487, 491. The jugment overruling the defendant's general and special demurrers to the petition is affirmed. Judgment affirmed. J......
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Western & A. R. Co. v. Davis, s. 43235
...the deficient part renders the whole imperfect. * * * Where a portion of a special demurrer is erroneous, the whole must fall.' Hughes v. Jackson, 109 Ga.App. 804(3, 5), 137 S.E.2d There was no error in overruling Western & Atlantic's demurrers 3, 4, and 5. (b) Plaintiff complains of the su......