Eubanks v. Davis

245 S.E.2d 495, 146 Ga. App. 146, 1978 Ga. App. LEXIS 2235

Opinion

Webb, Judge.

1. This is an appeal from an order of the trial court dismissing the complaint for failure to state a claim for fraud upon which relief can be granted. In view of the new rule announced in Cochran v. McCollum, 233 Ga. 104 (210 SE2d 13) (1974), this court is unable to affirm the judgment below but must reverse with direction to sustain the motions as for more definite statement, as outlined in Tucker v. Chung Studio of Karate, 142 Ga. App. 818, 819 (3) (237 SE2d 223) (1977).

Submitted May 4, 1978 Decided June 6, 1978. John Genins, for appellant. Cotton, Katz, White & Palmer, J. Timothy White, Kenneth Gartlir, Macey & Zusmann, James W. Penland, Long, Weinberg, Ansley & Wheeler, Charles M. Goetz, Jr., Hurt, Richardson, Garner, Todd & Cadenhead, Paul M. Talmadge, Jr., for appellees.

2. The counterclaims alleging that the complaint was filed and is being used wilfully and maliciously for improper purposes and without probable cause should have been dismissed on plaintiffs motion therefor since they are premature. Metro Chrysler-Plymouth, Inc. v. Pearce, 121 Ga. App. 835 (175 SE2d 910) (1970); Prairieland Broadcasters v. Thompson, 135 Ga. App. 73, 74 (3) (217 SE2d 296) (1975).

Judgment reversed with direction.

Quillian, P. J., and McMurray, J., concur.