Anderson v. Hilton & Dodge Lumber Co.

34 S.E. 365, 110 Ga. 263, 1899 Ga. LEXIS 518

• Court: Supreme Court of Georgia
• Decided: November 1, 1899
• Status: Published

Opinion

Fish, J.

1. It is not cause for the dismissal of a writ of error that “there is no identification whatever of the contracts referred to in the bill of exceptions whereby same can be recognized,” when enough appears in the bill of exceptions and the transcript of the record, without such contracts, to enable the Supreme Court to ascertain the real questions made in the case.

2. A demurrer must be decided only upon a consideration of the pleadings. It can derive no aid from extrinsic evidence. Seibels v. Hodges, 65 Ga. 245; Constitution Publishing Co. v. Stegall, 97 Ga. 405; Augusta & Savannah R. R. Co. v. Lark, Id. 800; Sasser v. Adkins, 108 Ga. 230. Hence, where there was a general demurrer to an ’ affidavit of illegality to the foreclosure of a chattel mortgage, and the trial judge, in adjudicating upon the legal sufficiency of the affidavit, considered the statement of an account between the mortgagee and mortgagor, which was annexed to the mortgage, and.also considered, as shown in the judgment rendered, certain contracts entered into between, the parties at various times, and which were attached to the affidavit of illegality but not referred to therein as being so attached nor in any way made parts thereof, and thereupon sustained the demurrer: Held, that the court committed error, and that the judgment should be reversed where it appears that some, if not all, of the grounds of illegality were sufficient as against a general demurrer.

Argued October 11, Decided November 1, 1899.

Affidavit of illegality. Before Judge Hart. Laurens superior court. January term, 1899.

T. L. Griner, A. F. Daley and James K. Hines, for plaintiff in error. DeLacy & Bishop, Peyton L. Wade, and Dessau, Harris & Birch, contra.

Judgment reversed.

All the Justices concurring.