Lance v. Boroughs, s. 19967
| Decision Date | 10 February 1958 |
| Docket Number | Nos. 19967,19979,s. 19967 |
| Citation | 213 Ga. 834,102 S.E.2d 167 |
| Parties | J. D. LANCE v. J. C. BOROUGHS. J. C. BOROUGHS. v. J. D. LANCE |
| Court | Georgia Supreme Court |
Joseph J. Fine, D. W. Rolader, Atlanta, for plaintiff in error.
Edward D. Wheeler, Atlanta, for defendant in error.
Syllabus Opinion by the Court
When this case was here before (Boroughs v. Lance, 213 Ga. 143, 97 S.E.2d 357), seeking to cancel a decree registering title to the land involved, in favor of the defendant, and to compel the defendant to quit-claim to plaintiff all title and claims thereto acquired under a tax deed dated January 9, 1946, this court held that--since no attack was made against the tax sale, and the petition showed that the right of redemption was foreclosed on May 27, 1950, and failed to show that plaintiff had any interest in the land when his suit was filed or when the decree registering title was entered--the petition failed to allege a cause of action for any of the relief sought. Before the remittitur was entered in the trial court, the plaintiff offered an amendment amending the original petition, and adding two additional counts thereto, which over objections was allowed filed. In a cross-bill, the defendant excepts to the refusal to strick said amendment upon his motion, and by the main bill the plaintiff excepts to the order sustaining all of the defendant's demurrers and dismissing the petition. Held:
1. 'Where the trial judge has overruled a general demurrer and his judgment is reversed by the reviewing court, the plaintiff may, before the remittitur from the reviewing court is made the judgment of the trial court, amend his petition as if no judgment had been rendered; otherwise when the reviewing court affirms a judgment sustaining a general demurrer.' Milton v. Milton, 195 Ga. 130, 131, 23 S.E.2d 411, and cases cited. The amendment in this case, adding new and additional facts and adding two additional counts to the petition, was not subject to the criticism applicable in Wilson v. Missouri State Life Ins. Co., 184 Ga. 184, 190 S.E. 552, where the offered amendment simply sought to amplify the grounds of the original petition, which had been held by this court to be insufficient in law to state a cause of action. It was not error to allow the amendment to the petition.
2. The original petition, treated here as count I, is still subject to the same objection pointed out in our former decision. This count shows that the property was sold for taxes in 1946, and the right of redemption foreclosed in 1950, and not attack is made against the sale. The plaintiff's allegation of ownership is negatived by the facts alleged in the petition, and he fails to show that subsequently to the sale he acquired any interest in the property or that he now has any interest therein sufficient to support his prayers for cancellation of the decree of August 31, 1955, registering title in the defendant. The demurrer to court I was properly sustained.
3. In count II of his petition, the plaintiff contends that the tax sale made in 1946 was null and void for stated reasons. However, in this count the plaintiff fails to allege that he is the owner of the property involved or to allege any facts showing his ownership therein. Each count in a petition must be complete in itself, and each must be complete in itself, and each must state a complete cause in itself without being aided or harmed by reference to another. Saffold v. Anderson, 162 Ga. 408, 412(2), 134 S.E. 81; Bass v. Seaboard Air Line R. Co., 205 Ga. 458, 459, 53 S.E.2d 895. Even if the tax sale were null and void for the reasons alleged, the plaintiff fails to show that he is entitled to attack the sale and have title to the property decreed in him. The demurrer to count II was properly sustained.
4. In count III the plaintiff sets forth additional allegations, which he relies upon to show that the tax sale in 1946 was null and void. This count contains a paragraph reading as follows: 'Plaintiff in this count III...
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...by reference, the paragraphs to be added must be specifically referred to and adopted as a part of the latter count.' Lance v. Boroughs, 213 Ga. 843(4), 102 S.E.2d 167, 169. Counts 2 and 3 of the petition fail to identify the timber which is the basis of the action. The plaintiff seeks dama......
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...107 Ga.App. 882, 131 S.E.2d 853), it is necessary that each of the causes of action be embraced in a separate count. See Lance v. Boroughs, 213 Ga. 834, 102 S.E.2d 167. The trial judge erred in overruling the special demurrer of each of the defendants objecting to the inclusion of the sever......
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