Southern Guaranty Ins. Co. v. Beasley
| Citation | 126 S.E.2d 260,106 Ga.App. 64 |
| Decision Date | 16 May 1962 |
| Docket Number | No. 39489,No. 1,39489,1 |
| Parties | SOUTHERN GUARANTY INSURANCE COMPANY v. Virgil BEASLEY et al |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court.
The overruling of plaintiff's 'Motion for judgment on the pleadings,' which was in substance a general demurrer to defendant's defensive pleadings, was not a final, reviewable judgment.
William F. Woods, Atlanta, for plaintiff in error.
Lindsay, Bell, Everett & Kasper, Edward B. Everett, Atlanta, for defendants in error.
The plaintiff (plaintiff in error) in a suit on a promissory note assigns error on the orders of the trial court overruling its demurrers to the answer and cross action of defendant (defendant in error), overruling its objections to defendant's amendment, overruling its original demurrers and its renewed and additional demurrers to defendant's plea of no consideration, and overruling and denying its motion for judgment on the pleadings.
In the motion designated by plaintiff as a 'Motion for judgment on the pleadings' the ground stated is 'That no legal defense to the said indebtedness has been set forth by either of the defendants before the appearance day and the period allowed by law for opening defaults as a matter of right has expired * * * That the plaintiff is entitled to a judgment as a matter of law in accordance with Code Section 110-405 without the verdict of a jury.' (Emphasis supplied).
Code § 110-406 provides: 'The court, either in open court or at chambers, shall render judgment without the verdict of a jury in all civil cases founded on unconditional contracts in writing where an issuable defense is not filed under oath or affirmation on or before the appearance day as to such case and where the period allowed by law for opening defaults as a matter of right has expired, and where the case is still in default.'
This Code section does not provide a procedure for attacking the legal sufficiency of pleadings. It authorizes the court to grant a judgment when an issuable defense under oath is not filed at the stated time, or when the defenses filed have been stricken. Moore & Jester v. Smith Machine Co., 4 Ga.App. 151, 60 S.E. 1035; Akers v. Decatur Street Bank, 16 Ga.App. 262, 85 S.E. 201. In this case the defendant filed verified defensive pleadings which the court held good against general demurrers. The plaintiff's motion, though plaintiff gives it another name and asks for a default judgment, is in substance a general demurrer to defendant's filed defenses. * * *' Waller v. Morris, 78...
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