Merck v. Jackson

• Decision Date: 11 December 1934
• Docket Number: No. 10489.,10489.
• Citation: 179 Ga. 859,177 S.E. 748
• Parties: MERCK. v. JACKSON et al.
• Court: Georgia Supreme Court

179 Ga. 859

177 S.E. 748

MERCK.

v.JACKSON et al.

No. 10489.

Supreme Court of Georgia.

Dec. 11, 1934.

Syllabus by Editorial Staff.

Error from Superior Court, Fulton County; G. H. Howard, Judge.

Suit by Mrs. Ada Jackson Merck against W. E. Jackson and others. To review a judgment sustaining a demurrer and dismissing the suit as to all except named defendant, plaintiff brings error.

Affirmed.

Robt. Lee Avary and Robt. Lee Avary, Jr., both of Atlanta, for plaintiff in error.

Louis. H. Foster, of Atlanta, for defendants in error.

Syllabus Opinion by the Court.

GILBERT, Justice.

Mrs. Ada Jackson Merck filed suit against W. E. Jackson individually and as executor of the will of F. M. Jackson, deceased, and against seven children of W. E. Jackson. The petition and prayers sought relief, both legal and equitable, for a variety of causes, against a number of persons. The defendants demurred generally, and on the grounds of multifariousness, lack of jurisdiction, no equity, and that W. E. Jackson as executor had never given his consent or assigned to the plaintiff the right to sue for any debt due the estate. The court sustained the demurrer and dismissed the action as to all of the parties except W. E. Jackson, but allowed the case to proceed against him individually on the claims for alleged debts due by him to the estate and which he had failed to pay, as set out in the designated paragraphs of the petition, and provided that as to one of the paragraphs the plaintiff amend "so as to suspend the running of the statute of limitations as to the same." Mrs. Merck excepted. Held:

1. The demurrer was properly sustained as to those portions of the petition which sought relief against W. E. Jackson as executor of the will of F. M. Jackson, deceased, and against seven children of W. E. Jackson. It was proper practice to overrule the demurrer in part and sustain it in part; thus dismissing those parts which were bad and retaining that which was good. May v. Jones, 88 Ga. 308 (4), 14 S. E. 552, 15 L. R. A. 637, 30 Am. St. Rep. 154.

2. Where a special demurrer is sustained or overruled conditionally, and there is due compliance with the condition, such compliance automatically denies the right to except. One cannot both comply with the ruling, which amounts to a submission, and afterwards complain that the ruling was erroneous. Baker v. Calloway, 167 Ga. at page 919, 147 S. E. 562, and cit.

3. Other than as above stated, the court did not rule on the special demurrers; and...