Gerrell v. Davis Construction & Engineers, Inc.

157 S.E.2d 327, 116 Ga. App. 319, 1967 Ga. App. LEXIS 797

• Court: Court of Appeals of Georgia
• Decided: September 15, 1967
• Docket: 42990
• Status: Published

Opinion

Eberhardt, Judge.

1. Where a grading contractor brought suit against another contractor seeking to recover a balance alleged to be due and for which “defendant obligated to pay plaintiff,” for services performed in the grading and moving of dirt on land of a third party, who was not a party to the action, allegations and exhibits relative to the recording of a claim for lien against the land and a prayer for special judgment foreclosing a lien thereon, being wholly inappropriate to the action (Cf. Buck v. Tifton Mfg. Co., 4 Ga. App. 695 (62 SE 107); Chambers Lmbr. Co. v. Gilmer, 60 Ga. App. 832, 835 (5 SE2d 84)), are to be regarded as surplusage in determining whether the petition can withstand a general demurrer.

Submitted September 5, 1967 Decided September 15, 1967. Charles W. Hill, Owens & Porter, for appellant. Perry, Walters, Langstaff & Lippitt, Robert B. Langstaff, for appellee.

2. Where the petition contains the bare essentials of a common law action on contract and prays for a general judgment as damages for its breach a general demurrer should be overruled.

Judgment reversed.

Felton, C. J., and Hall, J., concur.