United Jewelers, Inc. v. Emanuel Burton Diamond Co.

• Decision Date: 07 May 1958
• Docket Number: No. 20017,20017
• Citation: 214 Ga. 170,104 S.E.2d 87
• Parties: UNITED JEWELERS, Inc., et al. v. EMANUEL BURTON DIAMOND COMPANY.
• Court: Georgia Supreme Court

Page 87

104 S.E.2d 87

214 Ga. 170

UNITED JEWELERS, Inc., et al. v. EMANUEL BURTON DIAMOND COMPANY.

No. 20017.

Supreme Court of Georgia.

May 7, 1958.

Rehearing Denied June 4, 1958.

Syllabus by the Court

The judgment of the trial court overruling the demurrers of the defendants to the petition as finally amended was not error. The appointment of a receiver was not an abuse of discretion, or erroneous, for any reason assigned.

On March 2, 1954, Emanuel Burton Diamond Company, Inc., filed its petition for equitable relief against United Jewelers, Inc., to which petition the defendant interposed its general and special demurrers on March 25, 1954. By amendment, filed March 26, 1954, Ira J. DeBolt, Mrs. Sarah DeBolt, M. M. Eisenburg, and H. L. Ivey were sought to be made parties defendant. G. Eugene Ivey was named as a party defendant by amendment filed July 16, 1954. By amendment filed November 10, 1954, R. M. Graves and C. P. Strong were sought to be made parties defendant, and rule nisi issued on the same date requiring them to show cause why they should not be made parties defendant to the action. To the petition as thus amended, C. P. Strong and R. M. Graves filed identical general demurrers. The petition was further amended, and the amendment ordered filed, subject to demurrer, on March 22, 1956. The petition was further amended, and the amendment allowed filed, subject to demurrer, on March 29, 1957. General and special demurrers of the defendants to the petition, as amended, were renewed.

On November 7, 1957, the plaintiff's 'redrafted' petition was ordered filed, subject to demurrer, and on November 15, 1957, the 'redrafted' petition was filed. Thereafter the defendants filed identical general demurrers. The 'redrafted' petition was subsequently amended on November 22, 1957, to which amended petition all of the defendants demurred generally and specially, except R. M. Graves, who filed only a general demurrer, upon the ground that the petition as amended set forth no cause of action. The other defendants demurred specially on the ground that the petition as amended showed a misjoinder of parties defendant and causes of action.

On December 27, 1957, the general and special demurrers of all of the defendants were overruled, and in the bill of exceptions error is assigned on this judgment, and on certain prior rulings of the court, beginning with an order dated March 26, 1954.

Frank E. Blankenship, Augustine Sams, Grigsby H. Wotton, Atlanta, for plaintiffs in error.

Marvin P. Nodvin, Atlanta, for defendant in error.

HEAD, Justice.

1. Where separate judgments are rendered and excepted to, the only judgment which requires consideration by this court is that judgment which overruled the demurrers to the petition as finally amended, and to the last amendment. 'This is true for the reason that, when the original petition was amended after being demurred to, the questions raised by the first demurrer became moot, and the demurrer became extinct or nugatory, and when the petition as then amended was demurred to and again amended, the second demurrer likewise became extinct or nugatory.' Holliday v. Pope, 205 Ga. 301, 308, 53 S.E.2d 350, 355; Hunter v. Ogletree, 212 Ga. 38, 89 S.E.2d 891; Hancock v. Wilson, Ga., 102 S.E.2d 551.

In the present case, when the amendment to the 'redrafted' petition was filed, all of the defendants, with the exception of R. M. Graves, demurred specially to the petition on the ground that it contained a misjoinder of parties defendant and of causes of action. If the defendants wanted to demur specially on the ground of misjoinder, such demurrers should have been filed to the amendment naming them as parties defendant. The amendment to the 'redrafted' petition in no wise changed or added to its material allegations, and, therefore, the special demurrers on the grounds of misjoinder were not filed in time, and properly should have been dismissed. Tucker v. Howard L. Carmichael & Sons Inc., 208 Ga. 201, 207, 65 S.E.2d 909. There was no motion to dismiss, and the trial judge did not, in fact, dismiss these special demurrers, but ruled on the merits, and this being true, the plaintiff waived the time of filing. Mayo v. Owen, 207 Ga. 641, 642, 63 S.E.2d 649. The fact that the trial judge ruled on the merits of these special demurrers, rather than dismissing them, cannot, however, benefit these defendants.

'These is no misjoinder of parties or of causes of action, even if the petition concerns things of a different nature against several defendants whose rights are distinct, if it sets forth one connected interest among them all, centering in the point in issue in the case.' Hermann v. Mobley, 172 Ga. 380(3), 158 S.E. 38; Goodroe v. C. L. C. Thomas Warehouse, 185 Ga. 399, 195 S.E. 199; Grant v. Hart, 192 Ga. 153, 155, 14 S.E.2d 860; Lyle v. Keehn, 195 Ga. 508, 514, 24 S.E.2d 655; Briarcliff, Inc., v. Kelley, 198 Ga. 390, 395, 31 S.E.2d 586; Williamon v. Williamon, 209 Ga. 494, 495(3), 74 S.E.2d 71.

The petition having stated a cause of action against all of the defendants, the special demurrers on the ground of misjoinder were properly overruled, since the petition set forth a connected interest of all of the defendants in the main issue set forth.

It was not error to overrule the general demurrers of the defendants, and the written motion to dismiss in the nature of a general demurrer. The petition clearly having stated a cause of action, no error or abuse of discretion is shown in the order appointing a receiver. Code, § 55-305; Crockett v. Wilson, 184 Ga. 539, 192 S.E. 19.

2. When the amendment naming R. M. Graves as a party defendant was filed in November, 1954, a rule nisi was duly issued, and this defendant filed only a general demurrer. R. M....