National Recording Corp. v. Bagley Elec. Co.

• Decision Date: 08 September 1964
• Docket Number: No. 40793,No. 2,40793,2
• Citation: 138 S.E.2d 198,110 Ga.App. 219
• Parties: NATIONAL RECORDING CORPORATION v. BAGLEY ELECTRIC COMPANY
• Court: Georgia Court of Appeals

Page 198

138 S.E.2d 198

110 Ga.App. 219

NATIONAL RECORDING CORPORATION v. BAGLEY ELECTRIC COMPANY.

No. 40793.

Court of Appeals of Georgia, Division No. 2.

Sept. 8, 1964.

Syllabus by the Court

1. Where an action is brought in the Civil and Criminal Court of DeKalb County and the prayer for process, as well as the process attached, is in accordance with the provisions of the Act prescribing practice and procedure for said court a motion to quash such process is without merit.

2. 'A motion to dismiss is the equivalent of a general demurrer, and an objection to a petition on the ground of nonjoinder of parties cannot be raised thereby.' Haynes v. Thrift Credit Union, 192 Ga. 229(2), 14 S.E.2d 871.

3. 'Where it does not appear from the face of the contract whether it is the signer's individual undertaking or is that of his principal acting through him as the principal's agent, it may, especially where the contract is not executed under seal, be shown extrinsically that the contract is that of the principal, executed for and in his behalf by his agent.' Dorsey v. Rankin, 43 Ga.App. 12(1), 157 S.E. 876.

4. A plaintiff is not required to set forth the evidentiary facts in a petition but only the material ultimate facts upon which a recovery depends.

Bagley Electric Company sued National Recording Corporation in the Civil and Criminal Court of DeKalb County to recover for materials and services furnished the defendant and based upon an agreement to pay which was attached as an exhibit to the petition. The defendant filed a motion to quash the process, a plea of nonjoinder of parties plaintiff, and general and special demurrers to the plaintiff's petition, each of which was overruled and a final judgment was rendered for the plaintiff on the trial of the case without the intervention of a jury. Error is assigned on each of the antecedent judgments which it is contended control the final judgment adverse to the defendant.

Haas, Holland, Freeman & Levison, William M. Sinrich, Atlanta, for plaintiff in error.

Talley Kirkland, Atlanta, for defendant in error.

NICHOLS, Presiding Judge.

1. The defendant's motion to quash the process on the grounds that the prayer for process was not in accord with the Act of 1946 (Ga.L.1946, pp. 761, 768; Code Ann. § 81-201), and because the process attached to the petition was not prayed for is without merit. Section 11 of the Act of 1951 (Ga.L.1951, pp. 2401, 2405), creating the Civil Court of DeKalb County (later Civil and Criminal of DeKalb County), provides for the commencement of all actions filed by summons returnable to the first term of such court beginning after a certain number of days. See also Stein Steel & Supply Co. v. Tate, 94 Ga.App. 517, 95 S.E.2d 437. The prayer was for 'next term' process and the process served followed such prayer.

2. The defendant filed a plea denominated as a 'plea of nonjoinder of party plaintiff.' Such plea contends that the 'several supposed promises and undertakings in the plaintiff's petition mentioned, if any such were made, were, and each of them was, made individually by one W. T. Bagley * * * and said W. T. Bagley is still living, and is a necessary party plaintiff to any action on the contract attached to the plaintiff's petition * * * the said W. T. Bagley is not named in plaintiff's petition * * * wherefore, defendant prays that plaintiff's suit be dismissed, with costs assessed against him.'

'Objections to a petition on the grounds of misjoinder or nonjoinder of parties, multifariousness, duplicity, or misjoinder of causes of action, must be raised by special rather than general demurrer. Hartsfield v. Tremont Baptist Church, 163 Ga. 557(3) (136 SE 550); Roberts v. Burnett, 164 Ga. 64(7) (137 SE 773); Ray v. Pitman, 119 Ga. 678 (46 SE 849); Riley v. Royal Arcanum, 140 Ga. 178(1, b) (78 SE 803); Ga. R. & C. Co. v. Tice, 124 Ga. 459 (52 SE 916, 4 Ann.Cas. 200).' Shingler v. Shingler, 184 Ga. 671, 672, 192 S.E. 824. The motion, while denominated as a 'plea of nonjoinder' is in reality a motion to dismiss upon the ground of nonjoinder, and as shown in Haynes v. Thrift Credit Union, 192 Ga. 229(2), 14 S.E.2d 871: 'A motion to dismiss is the equivalent of a general demurrer, and an objection to a petition on the ground of nonjoinder of parties can not be raised thereby.' The trial court did not err in overruling such motion of the defendant.

3. The document attached to the plaintiff's petition showed that the defendant was 'invoiced' for the labor and material furnished to the defendant on '8-6-63' and '9-6-63' and that the promise to pay for such 'invoiced' labor and material was made on '9-17-63.' Obviously, such contract was not for labor and material to be performed but was for the purpose of...