Wilson v. Tumlin, 38753
| Decision Date | 25 April 1961 |
| Docket Number | No. 38753,No. 2,38753,2 |
| Parties | J. B. WILSON v. W. L. TUMLIN |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. A plea of payment which fails to allege with reasonable certainty when, how, and to whom the payment was made is insufficient and, unless amended, should be stricken, upon demurrer, timely filed, specifically pointing out these defects.
2. The trial court erred in striking the defendant's answer in its entirety upon the failure of the defendant to amend paragraph 5 thereof in response to the plaintiff's special demurrer since the defects therein did not relate to the entire answer.
3. The trial court having erred in striking the defendant's answer in its entirety, the subsequent proceedings in the case were rendered nugatory.
W. L. Tumlin filed his action in Cobb Superior Court against James B. Wilson seeking to set up a materialman's lien against certain described property belonging to the defendant and to foreclose same. The defendant filed his answer in which he admitted certain paragraphs of the plaintiff's petition and denied others. The plaintiff in turn filed a general demurrer to said answer and a special demurrer to paragraph 5 thereof. On July 15, 1960, the plaintiff filed a motion for a summary judgment. On November 3, 1960 the court entered an order overruling the general demurrer to the defendant's answer and sustaining the special demurrer with leave to the defendant to amend his answer within 10 days. On November 15, 1960, no amendment having been filed, the trial court entered an order dismissing the defendant's answer in its entirety. Finally, on November 23, 1960 the trial court entered a summary judgment against the defendant in the sum of $1,104.75 and costs. The defendant has excepted to this court assigning error on the order of the trial court granting the plaintiff's motion for summary judgment and on the antecedent rulings sustaining the demurrer to paragraph 5 of his answer and dismissing his answer in its entirety.
Jean E. Johnson, Sr., Marietta, for plaintiff in error.
Hicks & Henderson, G. Robert Howard, Marietta, for defendant in error.
1. Paragraph 5 of the defendant's answer alleged the following: 'By way of further answer the defendant shows that he entered into a construction contract with the said Tagenais, for an amount certain, and that all money due said Tagenais Construction, for weeks (sic) has been paid him and that your defendant is not liable to the plaintiff in any amount.' The plaintiff demurred specially to this paragraph and moved that it be stricken on the ground that it was insufficient in law to set out a plea of payment in that it did not allege the time, manner and person to whom payment was made. "A plea of payment which fails to allege with reasonable certainty when, how, and to whom the payment was made is...
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Southern Ry. Co. v. Smalley
...trial court in striking these defenses was sufficient in itself to render the subsequent trial of this case nugatory (Wilson v. Tumlin, 103 Ga.App. 654, 120 S.E.2d 196; National Life & Acc. Ins. Co. v. Chapman, 106 Ga.App. 375, 127 S.E.2d 157; however, after the introduction of evidence, th......
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National Life & Acc. Ins. Co. v. Chapman, 39462
...the general demurrer to the defendant's answer, the subsequent proceedings in the case were rendered nugatory. Wilson v. Tumlin, 103 Ga.App. 654, 120 S.E.2d 196. The policy in the instant case obligates the insurer to pay the insured certain benefits for 'losses * * * solely as a result of ......
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Southwire Co. v. Franklin Aluminum Co.
...trial court did not err in denying the plaintiff's motion to strike which was addressed to such paragraphs as a whole. Wilson v. Tumlin, 103 Ga.App. 654(2), 120 S.E.2d 196. 2. The record in this case does not disclose that proper exception relevant to the instructions and absence of instruc......
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Keiser v. American Exp. Co.
...and such error will render all future proceedings in the case nugatory. Jones v. Lawman, 56 Ga.App. 764, 194 S.E. 416; Wilson v. Tumlin, 103 Ga.App. 654, 120 S.E.2d 196; Bowles v. White, 206 Ga. 433(2), 57 S.E.2d The plaintiff did not specially demur to the defendant's answer here but filed......