Bennett v. Benton

133 S.E. 855, 162 Ga. 139, 1926 Ga. LEXIS 122

• Court: Supreme Court of Georgia
• Decided: April 16, 1926
• Docket: No. 5053
• Status: Published

Opinion

Gilbert, J.

1. On the hearing in this court defendants in error moved to dismiss the writ of error on the following grounds, to wit: first, “there is no valid and sufficient assignment of error in the bill of exceptions;” second, “effort is made to assign error upon the judgment of the court sustaining a demurrer to the plaintiff’s petition, but the said demurrer is neither set out in the bill of exceptions, nor attached thereto as an exhibit, nor specified as a part of the record to be transmitted, so that neither from the bill of exceptions nor from the record, nor both together, can this court determine what were the grounds urged in the said demurrer.” Eeld: The motion is denied. The assignment of error is on the overruling of a demurrer, and the bill of exceptions recites: “Plaintiff in error specifies as error the judgment of the court sustaining the general demurrer and dismissing said case.” This is sufficient. McGregor v. Third National Bank, 124 Ga. 557 (3) (53 S. E. 93) ; Patterson v. Beck, 133 Ga. 701 (66 S. E. 911); Toomey v. Read, 133 Ga. 855 (67 S. E. 100). The bill of exceptions recites that the defendants interposed a general demurrer to the petition, and that the court passed an order sustaining the general demurrer and dismissing the case, and error is assigned thereon, and the order of the court sustaining the general demurrer is specified as material to the inquiry, and the clerk certified and sent up as' a part of the record the demurrer, at the bottom of which, on the same sheet of paper, is the order of the judge sustaining “the foregoing demurrer.” According to tlie foregoing facts we think the second ground of the motion to dismiss is without merit. Moreover, if the demurrer had not been sent up as a part of the record, this court is empowered to require it sent up. Civil Code (1910), § 6190.

No. 5053. April 16, 1926. Rehearing denied June 28, 1926.

2. The petition was not subject to the demurrers. The allegations were suüicient to set out a cause of action; and while there were several defendants, under the allegations of the petition all of these defendants were properly joined in the action. The petitioner, superintendent of banks, under the statute (Acts 1919, p. 160) represented the depositors of various insolvent banks enumerated in the petition, and these depositors, as creditors, were entitled to an accounting from all of the defendants, and a court of equity had jurisdiction to fix the several liabilities and to render a decree accordingly. DeLacy v. Hurst, 83 Ga. 223 (9 S. E. 1052) ; Conley v. Buck, 100 Ga. 187 (28 S. E. 97) ; Cowan v. Nicholson, 158 Ga. 425 (123 S. E. 681) ; Williams v. Bennett, 158 Ga. 488 (123 S. E. 683).

3. The brief of counsel for defendants in error insists that the petition was demurrable for multifariousness. The general demurrers do not raise that question. A demurrer based upon that ground must point out the defects with particularity. Dannelly v. Cuthbert Oil Co., 131 Ga. 694 (63 S. E. 257). Judgment reversed.

All the Justices concur. G. N. Davie, Luther Roberts, A. 8. Thurman, A. G. Foster, and Allen & Pottle, for plaintiff. Clement & Campbell and M. F. Adams, for defendants.