Farmers & Merchants Bank of Manchester v. Gibson

Supreme Court of Georgia

Farmers & Merchants Bank of Manchester v. Gibson

85 S.E.2d 513, 211 Ga. 270, 1955 Ga. LEXIS 294

CourtSupreme Court of Georgia

DecidedJanuary 10, 1955

Docket18777

StatusPublished

Cited by12 cases

This text of 85 S.E.2d 513 (Farmers & Merchants Bank of Manchester v. Gibson) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Farmers & Merchants Bank of Manchester v. Gibson, 85 S.E.2d 513, 211 Ga. 270, 1955 Ga. LEXIS 294 (Ga. 1955).

Pincite

Opinion

Mobley, Justice.

1. An oral motion to dismiss is the equivalent of a general demurrer, and the question therein is not whether any particular allegation has been defectively pleaded, but whether the petition in its entirety fails to set out a cause of action. Minnesota Lumber Co. v. Hobbs & Livingston, 122 Ga. 20 (1) (49 S. E. 783); Capps v. Edwards, 130 Ga. 146 (1) (60 S. E. 455); Haynes v. Thrift Credit Union, 192 Ga. 229 (2) (14 S. E. 2d 871); Kanes v. Koutras, 203 Ga. 570, 573 (47 S. E. 2d 558).

2. “A general demurrer does not raise questions as to multifariousness, duplicity, or misjoinder of causes of action, or as to nonjoinder or misjoinder of parties. As to such matters, a special demurrer is necessary.” Grant v. Hart, 192 Ga. 153 (4) (14 S. E. 2d 860). See also Greenwood v. Starr, 174 Ga. 503 (1) (163 S. E. 500); Hughes v. Cobb, 195 Ga. 213 (1) (23 S. E. 2d 701); Hall v. Browning, 195 Ga. 423 (5) (24 S. E. 2d 392).

3. Grounds of special demurrer are not good unless set forth in writing and filed at the first term. Calhoun v. Mosley, 114 Ga. 641 (2) (40 S. E. 714); Wood v. Wood, 166 Ga. 519 (7) (143 S. E. 770). While the defendants in the present case filed written special demurrers, so far as appears from the record they were not passed upon by the trial court.

4. Since the passage of the Uniform Procedure Act, where a suit is filed in a superior court, which has general jurisdiction both in law and in equity, the petition should not be dismissed on general demurrer if it states a cause of action for either legal or equitable relief. Pardue Medicine Co. v. Pardue, 194 Ga. 516 (1) (22 S. E. 2d 143).

5. The allegations of the petition — to the effect, that the defendant husband, who was an insolvent debtor of the bank, executed a deed of gift conveying all of' his property to his wife for the purpose of hindering and delaying creditors — were sufficient, as against demurrer, to set forth a cause of action for the relief prayed, and the trial court erred in striking the petition on oral motion of the defendants. Echols v. Thompson, 210 Ga. 37 (77 S. E. 2d 521).

Judgment reversed.

All the Justices concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Mobley, Justice.

1. An oral motion to dismiss is the equivalent of a general demurrer, and the question therein is not whether any particular allegation has been defectively pleaded, but whether the petition in its entirety fails to set out a cause of action. Minnesota Lumber Co. v. Hobbs & Livingston, 122 Ga. 20 (1) (49 S. E. 783); Capps v. Edwards, 130 Ga. 146 (1) (60 S. E. 455); Haynes v. Thrift Credit Union, 192 Ga. 229 (2) (14 S. E. 2d 871); Kanes v. Koutras, 203 Ga. 570, 573 (47 S. E. 2d 558).

2. “A general demurrer does not raise questions as to multifariousness, duplicity, or misjoinder of causes of action, or as to nonjoinder or misjoinder of parties. As to such matters, a special demurrer is necessary.” Grant v. Hart, 192 Ga. 153 (4) (14 S. E. 2d 860). See also Greenwood v. Starr, 174 Ga. 503 (1) (163 S. E. 500); Hughes v. Cobb, 195 Ga. 213 (1) (23 S. E. 2d 701); Hall v. Browning, 195 Ga. 423 (5) (24 S. E. 2d 392).

3. Grounds of special demurrer are not good unless set forth in writing and filed at the first term. Calhoun v. Mosley, 114 Ga. 641 (2) (40 S. E. 714); Wood v. Wood, 166 Ga. 519 (7) (143 S. E. 770). While the defendants in the present case filed written special demurrers, so far as appears from the record they were not passed upon by the trial court.

4. Since the passage of the Uniform Procedure Act, where a suit is filed in a superior court, which has general jurisdiction both in law and in equity, the petition should not be dismissed on general demurrer if it states a cause of action for either legal or equitable relief. Pardue Medicine Co. v. Pardue, 194 Ga. 516 (1) (22 S. E. 2d 143).

5. The allegations of the petition — to the effect, that the defendant husband, who was an insolvent debtor of the bank, executed a deed of gift conveying all of' his property to his wife for the purpose of hindering and delaying creditors — were sufficient, as against demurrer, to set forth a cause of action for the relief prayed, and the trial court erred in striking the petition on oral motion of the defendants. Echols v. Thompson, 210 Ga. 37 (77 S. E. 2d 521).

Judgment reversed.

All the Justices concur.

Cite This Page — Counsel Stack

Bluebook (online)

85 S.E.2d 513, 211 Ga. 270, 1955 Ga. LEXIS 294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farmers-merchants-bank-of-manchester-v-gibson-ga-1955.

Opinion

Related

Cite This Page — Counsel Stack