Smith v. Jarrett

• Decision Date: 19 February 1948
• Docket Number: No. 31857.,31857.
• Citation: 46 S.E.2d 626
• Parties: SMITH . v. JARRETT et al.
• Court: Georgia Court of Appeals

46 S.E.2d 626

SMITH .

v.JARRETT et al.

No. 31857.

Court of Appeals of Georgia, Division No. 1.

Feb. 19, 1948.

Syllabus by the Court.

Neither the original petition nor the petition as amended set out a cause of action that would authorize a recovery in behalf of the plaintiff; the court did not err in sustaining the defendants' general demurrers and in dismissing the action.

Error from Superior Court, Muscogee County; T. Hicks Fort, Judge.

Action by Charles L. Smith against A. R. Jarrett and others, trustees of Gentian Baptist Church, an unincorporated church, to recover amount due on account. To review the judgment, Charles L. Smith brings error.

Affirmed.

Charles L. Smith filed his petition in the Superior Court of Muscogee County, and alleged that A. R. Jarrett, D. C. Prim, W. M. Hassett and J. M. Teal, are the duly appointed trustees of Gentian Baptist Church, an unincorporated church in said county; that the named parties, as trustees of said church, are indebted to petitioner in the sum of $601.09 on an account, bills of particulars marked exhibits "A" and "B" being attached to the petition; that the named defendants, as trustees, failed and refused to pay the account. The prayer was for "judgment in the amount aforesaid plus the costs of this suit, " and for process.

The defendants demurred to the petition on the grounds: (1) that it set forth no cause of action; (2) that it disclosed that said church was an unincorporated church, but did not allege that any certificate of appointment of said trustees had been recorded in the Office of the Clerk of the Superior Court of Muscogee County, Georgia, as provided by the Code, § 22-414; (3) that exhibit "A" was not a proper itemization of the account; (4) that it appeared that the church was unincorporated and the members thereof were not made parties.

The plaintiff tendered an amendment to his petition, which was allowed subject to demurrer, in which he amended exhibit "A" by adding exhibit "A(l)", the same being a detailed explanation of the items listed on exhibit "A"; and by adding to paragraph 1 of the petition that "No certificate of appointment of any of said Trustees has been filed in the office of the Clerk of the Superior Court of Muscogee County, Georgia, as required by Section 22-411 of the Georgia Code of 1933"; and by adding the following new paragraph to his petition as paragraph 4: "The various items set forth in 'Exhibit A, ' 'Exhibit A(l)' and 'Exhibit B' hereto attached are items of supplies and materials furnished by plaintiff for the construction and erection of a parsonage for said Gentian Baptist Church on property of said Church located in Muscogee County, Georgia. Said items of supplies and materials were actually used in and employed in the erection and construction of a parsonage for said church on property of said church in Muscogee County, Georgia, which parsonage has been accepted, used and enjoyed by said Church. Defendants, as trustees as aforesaid, are the owners of said parsonage, the realty upon which the same is located, and all other property of said Gentian Baptist Church, all of which property they control for the benefit of said church."

Defendants renewed their demurrers, and also demurred to the amendment on the grounds that the original petition set forth no cause of action and could not be amended; and that paragraph 4 set forth or attempted to set forth a new cause of action.

The trial judge sustained the general demurrers to the petition as amended and dismissed the action; and the plaintiff excepted.

Albert W. Stubbs and Frank U. Garrard, both of Columbus, for plaintiff in error.

Theo. J. McGee and John G. Cozart, both of Columbus, for defendants in error.

SUTTON, Chief Judge (after stating the foregoing facts.)

Plaintiff's suit was on an account against the named defendants as trustees of the Gentian Baptist Church in Muscogee County, Georgia. It appeared from the plaintiff's petition that this church was unincorporated, but it was not alleged that a certificate of appointment of said trustees had been recorded in the Office of the Clerk of the Superior Court of Muscogee County, Georgia, as provided by the Code, § 22-414. The statement of the account attached to the petition failed to show what the items listed thereon were furnished for, and the prayer was only for a judgment for the amount sued for and costs. The original petition failed to set out a valid cause of action....