Sheriff v. Weimer, 34381

• Decision Date: 22 April 1953
• Docket Number: No. 1,No. 34381,34381,1
• Citation: 88 Ga.App. 80,76 S.E.2d 33
• Parties: SHERIFF v. WEIMER
• Court: Georgia Court of Appeals

Page 33

76 S.E.2d 33

88 Ga.App. 80

SHERIFF v. WEIMER.

No. 34381.

Court of Appeals of Georgia, Division No. 1.

April 22, 1953.

Syllabus by the Court.

As amended, the petition stated a cause of action on an open account based on distinct express oral promises of the defendant to repay to the plaintiff the various sums alleged to have been advanced to or paid to others on behalf of the defendant, and the trial court erred in sustaining the general demurrer and in dismissing the petition.

W. George Thomas, Atlanta, for plaintiff in error.

J. V. Malcolm, Jr., and Howard, Tiller & Howard, Atlanta, for defendant in error.

WORRILL, Judge.

Dewey Sheriff sued Mildred Weimer on an open account. The petition as amended alleged: that, prior to January 2, 1951, he and the defendant were married and living together as man and wife; that, on December 12, 1951, defendant was granted an annulment on the ground that the plaintiff had a living wife at the time of the said pretended marriage; that on various alleged dates beginning on November 30, 1950, the plaintiff paid various sums of money to various persons or firms on behalf of the defendant, each at the instance of and on the request of the defendant, and on the defendant's promise to repay such sums; and that the defendant had failed and refused to repay such sums to the plaintiff. Each item thus claimed and the circumstances under which the plaintiff paid such sums were set forth in separate paragraphs of the petition, and as to each such item it was alleged that the defendant had promised to repay the plaintiff therefor, but had failed and refused to do so. The prayer was for judgment in the sum of $2,032.44 and for process.

The defendant demurred generally and specially to the original petition, the trial court sustained certain of the general and special demurrers but with leave to amend, and the plaintiff extensively amended the petition so as to allege facts as substantially outlined above. The defendant renewed her original demurrers and added numerous special grounds. The trial court entered an order sustaining the first and third grounds of the demurrer, which were as follows: 'She renews her demurrer to the petition as amended, and moves to dismiss the same upon the ground that said petition as amended does not cure the defect pointed out in the court's order dated May 20, 1952, sustaining defendant's general demurrer to the original petition'; and 'She demurs to the petition as amended upon the ground that the same sets forth no cause of action against this defendant'; and dismissed the action. The remaining grounds of the renewed demurrer were expressly not passed upon.

Under the provisions of the Code, § 81-1001, as amended by the act of 1952, Ga.L.1952, pp. 243-245, we have for consideration in this case only the question of whether the petition as amended set forth a cause of action against the defendant. In its original order the trial court said: 'It affirmatively appears in the petition that the alleged obligations sued upon were created during a time when the parties were married and living together. It further appears that defendant obtained an annulment from plaintiff. The court concludes that the basic right of parties in matters of this kind to recover, either at law or in equity, with respect to circumstances existing while the marriage was still of force and...