Spence v. Rodgers, 27904.

• Citation: 7 S.E.2d 787
• Decision Date: 06 March 1940
• Docket Number: No. 27904.,27904.
• Parties: SPENCE et al. v. RODGERS.
• Court: United States Court of Appeals (Georgia)

7 S.E.2d 787

SPENCE et al.

v.RODGERS.

No. 27904.

Court of Appeals of Georgia,

Division No. 2.

March 6, 1940.

Syllabus by the Court.

In the absence of an amendment to the petition, after the special demurrers were sustained on the ground of misjoinder of causes of action and of parties, the court erred in not dismissing the action.

FELTON, J., dissenting.

Error from City Court of Carrollton; W. Raymond Robinson, Judge.

Action by Minnie Rodgers against J. R. Spence and others for damages for negligent homicide of plaintiff's son. To review an adverse judgment, defendants bring error.

Judgment reversed with directions.

Samuel J. Boykin, of Carrollton, for plaintiffs in error.

J. Harvey Beall and Emmett Smith, both of Carrollton, for defendant in error.

PER CURIAM.

This was a suit for damages, brought by Mrs. Minnie Rodgers for the negligent homicide of her son, against J. Render Spence and Metropolitan Casualty Company, his insurer. Spence filed a general and two special demurrers to the petition, one on the ground of misjoinder of parties defendant and the other on misjoinder of causes of action. The court in one order overruled the general demurrer and sustained the two special demurrers, but did not in the order dismiss the petition. Multifariousness and misjoinder are subjects of special demurrer only, and if a petition is adjudged to be subject to demurrer on either ground the plaintiff has the right to elect as to his cause of action or as to the party against whom he will proceed.

The record here does not disclose that the plaintiff amended or offered to amend her petition after the special demurrers were sustained. In the absence of an amendment curing the defects in the petition, after the special demurrers were sustained on the ground of misjoinder of causes of action and of parties, the court erred in not dismissing the action.

The judgment is reversed with direction that the plaintiff be given an opportunity to amend by electing as to the defendant against whom she will proceed.

Judgment reversed with direction.

Stephens, P. J„ and SUTTON, J., concur.

FELTON, Judge (dissenting).

I frankly admit that the filing of this dissent is much ado about nothing, because whether the case is affirmed or reversed the result will be the same. The plaintiff will have the right to amend, in the absence of which her petition must be dismissed. I think the case should be affirmed because 1 construe the order of the judge to mean that he does not intend to dismiss...