Jones v. Butler
| Decision Date | 12 November 1940 |
| Docket Number | 13428. |
| Citation | 12 S.E.2d 326,191 Ga. 126 |
| Parties | JONES v. BUTLER et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Whether or not the order of January 26, 1940, sustaining special demurrers to four particular paragraphs of the petition should have provided only for elimination of these paragraphs unless they were amended, it actually adjudged by its terms that the whole petition should stand dismissed in the absence of 'appropriate amendment.' This amounted, whether correctly or incorrectly, to an adjudication that these paragraphs were essential to the statement of a cause of action for any relief, and the order was not met or satisfied by an amendment which struck these averments altogether from the petition. The amendment as proposed having failed to comply with the terms of the order, which not being excepted to became the law of the case, the final order of May 24 1940, formally dismissing the petition in its entirety, was not erroneous.
On February 28, 1939, Larry Jones filed a suit in equity against J. C. Butler and Lillian Butler, alleging, in substance, that the plaintiff and the defendants were the sole heirs at law of Lewis Butler, who died intestate on February 17, 1938 that as such heirs at law they were tenants in common of a described tract of land which they inherited from such intestate; that in 1935 Lewis Butler executed to J. C. Butler a deed conveying the property in question, but the grantor was insane at the time of executing such deed and continued to be insane for the remainder of his life that from 1925 until the death of Lewis Butler in 1938 the plaintiff had advanced or contributed various amounts for the maintenance and support of Lewis Butler, averaging as much as $25 per month; that he had also advanced 'to the said Lewis Butler, for the purpose of paying taxes upon the property,' sums of money amounting to approximately $100; and that Lewis Butler had declared to the plaintiff on various occasions that it was his intention to leave to the plaintiff a half undivided interest in the property, in order that he might in some measure be recompensed for such advances. These averments as to advances were contained in paragraphs 12, 13, 14, and 15. It was also alleged 'that the house is in a state of disrepair,' and that the rents are not being used for its repair or preservation, but are being sent out of the State of Georgia to J. C. Butler, who resides in Illinois. The plaintiff prayed for cancellation of the deed made by Lewis Butler to J. C. Butler, as void for insanity of the grantor, for accounting from J. C. Butler for rents and profits, for appointment of receiver, and for sale of the property and division of proceeds after deduction of the sums alleged to have been advanced by the plaintiff.
On June 23, 1939, the court overruled a general demurrer filed by J. C. Butler, and in the same order deferred action on special demurrers filed by him, declaring that such special demurrers may be 'later presented for consideration and adjudication.' On the same day an order was passed overruling a motion to revoke a previous ex parte order appointing a receiver, and to discharge the receiver so appointed. In the special demurrers paragraphs 12, 13, 14 and 15 of the petition were assailed on the grounds that the allegations in reference to advances did not specify the items, dates of payment, and to whom paid, with sufficient particularity; that the alleged agreement with Lewis Butler was too vague and indefinite to be enforceable; that upon the face of such allegations the demurrant was in no way liable for the sums claimed; and that in any event it appeared from the petition that the plaintiff's claim for such advances was barred by the statute of limitations. On January 26, 1940, the court passed an order sustaining these grounds of special demurrer, and providing that the plaintiff should have twenty days in which to file 'appropriate amendment, in the absence of...
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