Souders v. Carolina Portland Cement Co.

• Decision Date: 25 November 1907
• Docket Number: 570.
• Parties: SOUDERS v. CAROLINA PORTLAND CEMENT CO.
• Court: Georgia Court of Appeals

59 S.E. 467

3 Ga.App. 99

SOUDERS v. CAROLINA PORTLAND CEMENT CO.

No. 570.

Court of Appeals of Georgia

November 25, 1907

Syllabus by the Court.

A suit was filed to the January term, 1905, of the city court of Atlanta. It was based partly upon account. No bill of particulars was attached. Prior to the first day of the return term, the defendant filed special demurrer, also a specific demand for a bill of particulars. At the first term no action was taken upon either the demurrer or the demand. At the second term the defendant moved a nonsuit or dismissal of the plaintiff's action for noncompliance with the demand. The court overruled the motion and the defendant preserved an exception pendente lite thereto. At a subsequent term the court sustained the special demurrer, and required the plaintiff to amend by attaching a bill of particulars as to that part of the suit based on account, and the plaintiff accordingly amended. More than a year after this amendment was allowed the case came to trial and resulted in a verdict for the plaintiff. Held, that a new trial will not be granted because of the failure of the court to nonsuit or dismiss the plaintiff's action for noncompliance with the demand for a bill of particulars; that, if the court erred in not sustaining the motion to dismiss, the error was cured by the subsequent amendment furnishing the bill of particulars.

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

Action by Byron Souders against the Carolina Portland Cement Company. Judgment for plaintiff, and defendant brings error. Affirmed.

J. E. & L. F. McClelland, for plaintiff in error.

Ben. J Conyers and J. H. Porter, for defendant in error.

POWELL J.

Rule 11 of the superior court (Civ. Code 1895, § 5642) provides "In actions of assumpsit for the recovery of unliquidated demands, a bill of particulars shall be annexed to the copy served on the defendant; and in every case where the plea of set-off shall be filed, a copy of the set-off shall be filed at the time of filing the answer; and when the bill of particulars is not annexed to the declaration, the plaintiff shall lose a term; and if service of said bill of particulars is not effected upon the defendant by the succeeding term, a nonsuit shall be awarded." The term "nonsuit" as used in this rule is to be taken in the sense of the non pros. of the English practice or the dismissal of our practice. Kelly v. Strouse, 116 Ga 883, 43 S.E. 280. Section 4963 of the Civil Code of 1895 says: "In suits on account a bill of...