Peoples Loan Co. v. Allen

• Decision Date: 21 November 1944
• Docket Number: 15018.
• Parties: PEOPLES LOAN CO. et al. v. ALLEN et al.
• Court: Georgia Supreme Court

32 S.E.2d 175

198 Ga. 516

PEOPLES LOAN CO. et al. v. ALLEN et al.

No. 15018.

Supreme Court of Georgia

November 21, 1944

Syllabus by the Court.

The judgment overruling the general grounds of demurrer to the petition purports upon its face to be provisional only indicating such a reservation of jurisdiction in the trial court as to prevent the bringing of a bill of exceptions to this court assigning error thereon. The bill of exceptions must therefore be dismissed for want of jurisdiction in this court to entertain it.

Mrs E. W. Allen filed in Fulton superior court her bill in equity for injunction and receiver, naming E. W. Allen, Mary B Allen, Noah J. Stone, R. R. Pullen, J. Earle Smith, J. H. Geffken, W. E. Dupre, Magnolia Cemetery, Inc., Peoples Loan, Inc., and Peoples Loan Company as defendants.

On July 26, 1944, the trial court passed the following order and judgment upon the demurrers filed in the case:

'At interlocutory hearing, the court hereby overrules each and every ground of the demurrer filed by R. B. Pullen on July 7, 1944, to the petition as amended.

'At interlocutory hearing the court hereby sustains ground 14 of the demurrer filed by Peoples Loan Company, J. Earle Smith, and J. H. Geffken, and plaintiff is allowed twenty days in which to amend by showing whether or not Smith, Geffken, and Pullen took a transfer of stock of E. W. Allen in Peoples Loan, Incorporated, and if so how they took the same, and upon failure so to amend, said ground 14 will be sustained in full, and the related portions of the petition will then stand stricken.

'Ground 22 thereof is sustained in so far as it complains 'That it shows upon its face that the stock was not in fact transferred at all as alleged in the original or in said amendment, but on the contrary, that the corporation was dissolved by the stockholders thereof and the reference to the same and the claim of the plaintiff that such dissolution amounted to a transfer of said stock is a conclusion of the pleader and self-contradictory;' and in so far as said ground 22 complains, 'moreover the allegations of said paragraph directly contradict the allegations of the plaintiff's original petition respecting these defendants;' and said ground is further sustained in so far as it complains 'Because it was not alleged how, or in what manner and by whom J. Earle Smith was appointed liquidating agent;' and the same is further sustained in so far as it relates to the complaint in said ground 22 in relation to 'additional assets,' and 'how and in what manner he dissipated the same.' The plaintiff will be allowed twenty days in which to amend said petition with respect to the above-quoted complaints, and upon failure so to do, all reference to said complaints in the petition and amendment will stand stricken.

'Ground 23 thereof is hereby sustained, and the related portions of said petition are hereby stricken.

'All other grounds of said demurrer filed by said Peoples Loan Company, J. Earle Smith, and J. H. Geffken are hereby overruled.'

On August 12, 1944, the bill of exceptions was sued out in the instant case, complaining of the overruling of the general demurrer, and complaining that the trial judge on August 2, 1944, overruled an application for supersedeas and application to require the plaintiff to make an indemnifying bond. One bill of exceptions was filed, naming Peoples Loan Company, J. Earle Smith, J. H. Geffken, and R. B. Pullen as plaintiffs in error.

Charles G. Bruce and R. B. Pullen, both of Atlanta, for plaintiffs in error.

Houston White, Augustus M. Roan, and Noah J. Stone, all of Atlanta, for defendants in error.

WYATT, Justice.

1. 'It is not only the right but the duty of a reviewing or appellate court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.' Welborne v. State, 114 Ga. 793, 796, 40 S.E. 857, 859. See also Tillman v Groover, 25 Ga.App. 118, 102 S.E. 879.

'In the instant suit for damages, the trial judge, on March 14, 1930, passed an order overruling the general grounds and sustaining several special grounds of a demurrer to the petition and then in the same order provided that 'the plaintiff have until and through the 25th day of March, 1930, to amend her petition to meet the grounds of the special demurrer above and herein sustained, and that a copy of said amendment be served on the defendant, or its counsel, within five days thereafter.' The defendant on April 7, 1930, sued out a bill of exceptions assigning error upon the judgment so far as it overruled the demurrer, and in the bill of exceptions indicated nothing as to whether any further proceedings were had in the trial court. The judgment complained of shows upon its face that it was not intended to be final, and the bill of exceptions must therefore be dismissed for want of jurisdiction in this court to entertain it.' Georgia Power Co. v. Richards, 42 Ga.App. 741, 742, 157 S.E. 241. See also Folsom v. Howell, 94 Ga. 112, 21 S.E. 136; Steed v. Savage, 121 Ga. 84, 48 S.E. 689; Lovelace v. Browne, 126 Ga. 802, 55 S.E. 1041; Olds Motor Works v. Olds Oakland Co., 140 Ga. 400, 78 S.E. 902; Georgia Ry. & Power Co. v. Kelly,...