Mayo v. Owen

• Decision Date: 13 February 1951
• Docket Number: No. 17357,17357
• Citation: 207 Ga. 641,63 S.E.2d 649
• Parties: MAYO v. OWEN et al.
• Court: Georgia Supreme Court

Page 649

63 S.E.2d 649

207 Ga. 641

MAYO v.OWEN et al.

No. 17357.

Supreme Court of Georgia.

Feb. 13, 1951.

Rehearing Denied March 14, 1951.

Cumming, Cumming & Cumming and Joseph R. Cumming, all of Griffin, for plaintiff in error.

Christopher & Futral, Beck, Goodrich & Beck and John H. Goddard, all of Griffin, for defendants in error.

Syllabus Opinion by the Court.

DUCKWORTH, Chief Justice.

To the petition of the administrator for interpleader to require named persons who claimed to be heirs to set up their claims, and for the court to adjudicate the lawful heirs, all defendants, except the husband of the deceased intestate, filed an answer which contained an allegation that the husband had been convicted of the murder of the deceased and is now serving a life sentence therefor.To this allegation Mayo, the husband, filed a demurrer upon the grounds that it was irrelevant and prejudicial.The court order thereon recites that 'after hearing argument * * * it is ordered and adjudged that the demurrer is overruled,' and the bill of exceptions to the judgment overruling the amended motion for a new trial assigns error upon exceptions pendente lite to the judgment overruling the demurrer.Held:

Notwithstanding the requirement of CodeAnn.Supp. § 81-301, Ga.L.1857, p. 107, 1946, pp. 761, 773, that demurrers to answers be filed within 15 days after such defensive pleadings have been filed, there was no motion to dismiss, and the court did not in fact dismiss this demurrer but instead ruled on the merits; and the parties, having procured this ruling, are held to have waived the time of filing.But, irrespective of all other questions, this ruling erroneously adjudicates that this portion of the petition constitutes a valid defense and is not subject to demurrer--thus constituting the law of the case and authorizing evidence in proof...