Ferrell v. Greenway & Co.

122 S.E. 198, 157 Ga. 535, 1924 Ga. LEXIS 196

• Court: Supreme Court of Georgia
• Decided: February 14, 1924
• Docket: No. 3843
• Status: Published

Opinion

Atkinson, J.

1. The petition, construed most strongly against the pleader, is subject to special demurrer on the ground that it joins in one action separate and distinct causes of action against separate and distinct parties between whom there is no unity or privity of interest.

2. Paragraphs seven and eight of the petition are subject to special demurrer on the grounds that the allegations therein made set forth conclusions of the pleader of law and of fact, and are not pleaded with the degree of definiteness and particularity required by law.

(a) The case differs from Jackson v. Johnson, 157 Ga. 189 (120 S. E. 230), which did not involve a usurious transaction based on a loan of money.

3. In view of the fact that the demurrer was both general and special and was expressly sustained upon all the grounds thereof, and the probability that, if the judge had intimated or announced his intention to sustain the special demurrers mentioned in the preceding head-notes, the plaintiff would have prevented a dismissal of his petition by offering a proper amendment thereto, and the further fact that the j petition presents a meritorious ease, the judgment is affirmed, witii direction that the plaintiff be allowed to amend the petition in the respect above indicated, before the judgment of this court is made the judgment of the court below, and upon compliance with this direction by the plaintiff the ease stand for trial upon the petition as amended; but that upon his failure to do this, the judgment below be unconditionally affirmed. Civil Code, § 6205; Brown v. Bowman, 119 Ga. 153 (46 S. E. 410); Sims v. Cordele Ice Co., 119 Ga. 597 (46 S. E. 841).

Judgment affirmed, with direction.

All the Justices concur. F. W. Flint and IF. I. Heyward, for plaintiff. B. B. Jaclcson, for defendants.