Mullins v. Matthews

• Decision Date: 04 March 1905
• Citation: 122 Ga. 286,50 S.E. 101
• Parties: MULLINS. v. MATTHEWS et al.
• Court: Georgia Supreme Court

122 Ga. 286

50 S.E. 101

MULLINS.

v.MATTHEWS et al.

Supreme Court of Georgia.

March 4, 1905.

TRIAL—DISMISSAL OF ACTION—DEFECTIVE DECLARATION—FILING MOTION—ABUSE OF PROCESS—DECLARATION.

1. It was error to dismiss the plaintiff's case on an oral motion made at the trial term on the ground "that the alleged four counts in the declaration do not each, or any one of them, present a complete cause of action set forth in distinct and orderly paragraphs, as required by law." Such motion, being directed at defects of mere form in the petition, was in the nature of a special demurrer, and should have been filed at the appearance term.

[Ed. Note.—For cases in point, see vol. 17, Cent. Dig. Dismissal and Nonsuit, § 163.]

2. The petition set forth, in substance, a cause of action for the malicious abuse of legal process, and was therefore not subject to a motion to dismiss in the nature of a general demurrer.

(Syllabus by the Court.)

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by E. H. Mullins against M. E. Matthews and others. From a judgment of dismissal, plaintiff brings error. Reversed.

Ben J. Conyers, for plaintiff in error.

W. H. Terrell and Westmoreland Bros., for defendants in error.

FISH, P. J. E. H. Mullins brought an action against M. E. Matthews and others, returnable to the July term, 1898, of the city court of Atlanta. At the March term, 1904, the defendants made an oral motion to dismiss the case on two grounds: "(1) That [the petition] does not set forth a cause of action against the defendants. (2) That the alleged four counts in the declaration do not, each or any one of them, present a complete cause of action set forth in distinct and orderly paragraphs, as required by law." The court thereupon passed the following order: "The motion is sustained on the second ground, and the case will stand dismissed, unless within ten days from this date the plaintiff amends sufficiently as to matters in said ground complained of." Plaintiff failed to amend within the time prescribed by the order, and thereafter excepted to the granting of the same.

1. The second ground of the motion was aimed at alleged defects of mere form appearing on the face of the petition. It was in the nature of a special demurrer, and should have been filed at the appearance term. Civ. Code 1895, §§ 5047, 5659; South

Carolina R. Co. v. Augusta Southern R. Co., 111 Ga. 420 (1), 36 S. E. 593; Green v. Ham-brick, 118 Ga. 569, 572, 45'S. E. 420. The court therefore erred in dismissing the case on this ground. Counsel for the defendants in error contend that the judgment of the court is sustained by the ruling made in Cooper v. Portner Brewing Co., 112 Ga. 894. 38 9. E. 91. In that case it was decided that: "While it is permissible to embrace in one petition In different counts as many causes of action as the plaintiff sees proper, provided they are all of a similar nature, still, since the pleading act of 1893, each count must contain a complete cause of action in distinct and orderly paragraphs, numbered consecutively, and it is not permissible to make paragraphs of one count a part of another by mere reference to the same." It was accordingly held that, as two of the counts of the petition failed to set forth the causes of action sought to be embraced therein in orderly and distinct paragraphs, numbered consecutively, a motion to dismiss those counts for such defects should have been sustained. While it does not affirmatively appear from the opinion delivered in that case when this motion to dismiss was made, the record of the case of file in the clerk's office of this court shows that the motion was made in writing, and filed at the appearance term. So the decision there made is not at all in conflict with our present ruling.

2. Counsel for defendants In error contend that the judgment below should be affirmed, for the reason that, even if the second ground of the motion was not good at the time when the motion was made, the case should have been dismissed on the first ground; in other words, that the judgment was right, though It may have been based on a wrong reason. The first ground of the motion being in the nature of a general demurrer, the soundness of counsel's contention depends upon whether the petition set forth, in substance, a good cause of action. The petition was loosely drawn, but it alleged, in substance, that the defendants conspired to commit a trespass upon petitioner's property, and maliciously, and for the purpose of acquiring possession of her property and "plundering the same, " seized five wagon loads of her furniture, worth $3,000, all of which, except a piano and stool,...