Trowbridge v. Atlanta Newspapers, Inc., 35851

• Decision Date: 20 October 1955
• Docket Number: No. 2,No. 35851,35851,2
• Court: Georgia Court of Appeals
• Parties: C. G. TROWBRIDGE v. ATLANTA NEWSPAPERS, Inc

Page 592

90 S.E.2d 592

93 Ga.App. 11

C. G. TROWBRIDGE v. ATLANTA NEWSPAPERS, Inc.

No. 35851.

Court of Appeals of Georgia, Division No. 2.

Oct. 20, 1955.

Rehearing Denied Nov. 8, 1955.

S. T. Allen, Atlanta, for plaintiff in error.

Arnold & Gambrell, John E. Dougherty, Atlanta, for defendant in error.

Syllabus Opinion by the Court

TOWNSEND, Judge.

1. It is permissible for the plaintiff in pleading his cause of action to set out therein as many counts as he desires, each must set forth a perfect cause of action, embraced in distinct and orderly paragraphs numbered consecutively. Cooper v. Robert Portner Brewing Co., 112 Ga. 894(3), 38 S.E. 91.

2. A substantial compliance with Code, § 81-103, requiring that petitions in the superior court shall set forth the cause of action in orderly and distinct paragraphs, numbered consecutively, is sufficient; however, whether there has been a substantial compliance therewith is a matter which must be largely left to the discretion of the trial judge. Perry v Gormley, 183 Ga. 757(4), 189 S.E. 850; McConnell v. Smith, 18 Ga.App. 618(1), 90 S.E. 88.

3. The petition in this action for libel contained three paragraphs numbered 1, 2 and 3, followed by a heading 'Count One' divided into four 'subparagraphs', a 'Count Two' with six 'subparagraphs', a 'Count Three' containing seven paragraphs numbered 1 through 7, a 'Count Four' with five paragraphs numbered 1 through 5 and a 'Count Five' with three paragraphs numbered 1 through 3, all of which is followed by 'paragraphs of the main petition' numbered 4, 5, 6 and 7. In a number of the 'counts' essential facts which were alleged in other counts are simply mentioned as 'hereinabove set out' without the pleader adopting any part of one count and making it a part of another count by reference, as permitted in the amendment to Code, § 81-103, Ga.L.1953, Nov.- Dec. Sess., pp. 440, 444, or without setting out such essential facts in another count, so as to make it perfect within itself. No 'count' adopted, by reference or otherwise, the averments set out in the seven paragraphs of the 'main petition' and the 'main petition' did not set out a cause of action within itself. The defendant by general demurrer attacked each count as failing to set out a cause of action, and by special demurrer attacked the petition for the reason that it was not set out in orderly and distinct paragraphs as required by law. The court sustained the demurrers with leave to amend. When the time...