Mcclendon v. Hernando Phosphate Co

• Decision Date: 22 February 1897
• Parties: McCLENDON et al. v. HERNANDO PHOSPHATE CO.
• Court: Georgia Supreme Court

28 S.E. 152

100 Ga. 219

McCLENDON et al.

v.HERNANDO PHOSPHATE CO.

Supreme Court of Georgia.

Feb. 22, 1897.

Account—Sufficiency of Declaration—Limitations—Dismissal of Action.

1. A declaration which merely alleges that the defendant is indebted to the plaintiff upon an "open account, besides interest, a copy of which account is hereto annexed and made a part of the same, " is not, although a bill of particulars is thereto attached, good as against a special demurrer alleging that "in none of the paragraphs of plaintiffs petition is any amount alleged or claimed against the defendant." The declaration itself ought to state clearly and distinctly what the plaintiff claims to be due upon the account; and a loose general statement that the defendant is indebted thereon is not sufficient, it not even being averred that the plaintiff sues for the amount appearing on the face of the bill of particulars.

2. In order to bring within the provisions of section 2932 of the Code of 1882 an action which has been dismissed, so as to make the same stand upon the same footing as to limitation as the original case, it is essential that the declaration filed in the first instance should have been served upon the defendant. Mere filing without service will not be sufficient for the purpose indicated.

(Syllabus by the Court.)

Error from city court of Atlanta; H. M. Reid, Judge.

Action by J. J. McClendon & Co. against the Hernando Phosphate Company. Judgment for Jefendant, and plaintiffs bring error. Affirmed.

Reed & Hartsfield, for plaintiffs in error.

C. D. Maddox, for defendant in error.

FISH, J. The plaintiffs in error brought suit in the city court of Atlanta against the defendant upon an open account. There was a demurrer to the petition upon the grounds that "no cause of action, plainly, fully, and distinctly set forth, is alleged against the defendant; that in none of the paragraphs of the plaintiffs' petition is any amount alleged or claimed against the defendant"; because the action was barred by the statute of limitations. The court below sustained this demurrer, and subsequently, during the same term of the court, the plaintiffs moved the court to set aside the judgment sustaining the demurrer, and to reinstate the case, "upon the ground that the court ought not to have rendered said judgment, but ought to have overruled the demurrer, and held said petition for trial." In connection with said motion, "and as a part of the same, " plaintiffs offered an amendment to the petition, which alleged "that said petition was brought to the May term, 1895, of said court, and filed in due time, but the de fendant was never served with the same, " for the reason that the then counsel for the plaintiff, "after making diligent search, inquiring of his clients and all other parties from whom It seemed probable he could gain information, could not find out who was an agent or officer of the defendant's company to be served, and that said counsel and his client were not able to discover who was a proper officer of said company to be served until three or four days before the new suit was brought; whereupon said counsel decided that it was well to dismiss the old suit, and bring a new one, as an order to perfect service of the old suit must needs be served upon the defendants, which would cause probably as much delay or more than to bring a new suit." The court, in passing upon this motion, considered this tendered amendment as allowed and filed, and then overruled the motion. The plaintiffs in error allege that the court erred both in sustaining the demurrer and in overruling the motion to set aside the judgment and reinstate the case. We think that the court was right in both rulings.

1. This petition was defective. It simply alleged that the defendant was Indebted to the plaintiffs upon an open account, "besides interest, a copy of which account is hereto annexed, and made a part of the same, " without alleging how much the defendant was indebted upon the account, or for what amount the plaintiffs sued, or even alleging that the plaintiffs sued for the amount of the balance shown by the bill of particulars. As a copy of an account was attached to the petition, this allegation, taken in connection therewith, in the absence of a special demurrer, would doubtless have been sufficient to have sustained a verdict in the plaintiffs' favor, as all amendable defects are cured by verdict; but it was not sufficient to withstand the special demurrer that no cause of action was plainly, fully, and distinctly set forth, and "that in none of the paragraphs of the plaintiffs' petition is any amount alleged or claimed against the defendant." This was not setting forth in the petition, the plaintiffs' cause of action plainly, fully, and distinctly, as required by section 3332 of the Code of 1882. The pleading act of 1893 (Acts 1893, p. 56) does not weaken this requirement of the Code, but tends to strengthen it, for it is evident from the provisions of that act that the plaintiff should set forth his cause of action "in orderly and distinct paragraphs, numbered consecutively" in such a manner that the defendant may "severally and distinctly answer each paragraph of the plaintiffs' petition, " or, as provided by the act of December 16, 1895 (Acts 1895, p. 46), "may in a single paragraph deny any or all the allegations contained in the petition, or in a single paragraph * * * may admit any or all of the allegations contained in any or all of the paragraphs of the petition." The plaintiff should so plainly, fully, and distinctly set forth his cause of action...