Hollingsworth v. North American Deposit Co.

24 S.E. 35, 97 Ga. 391

• Court: Supreme Court of Georgia
• Decided: December 21, 1895
• Status: Published

Opinion

Simmons, C. J.

It appearing from the facts alleged that there was equity in the plaintiff's petition as to all the defendants, including the one who filed a demurrer thereto, it was error to sustain that demurrer and to dismiss the petition as to that defendant. As there could be no proper determination of the application for injunction without having him before the court, direction is given that the order sustaining the demurrer be set aside and that the application for injunction be then heard upon its merits.- Judgment reversed, with direction.

Olampet demurred ón the following grounds: (1) Want of jurisdiction. (2) It appears in the petition that the premises are located in Clayton county, that Graden resides in Olayton county, that this defendant resides in Illinois, and that the investment and deposit company is a corporation of the State of Iowa, and not doing business, at the time of filing said suit, in the State of Georgia. (3) It appears upon the face of the petition that plaintiff has parted with all of his right, title and interest in and to the property in controversy, and that in the event the property is sufficient to discharge said debt he has no longer any interest in the amount or payment thereof; and it appears by the petition that the property is sufficient to pay said debt, (d) No cause of action against this defendant is stated. (5) Misjoinder of causes of action, to wit: an alleged cause of action in tort against the investment and deposit company, a separate action in tort against this defendant, and an application for injunction restraining the enforcement of the deed against certain land in which petitioner by his own showing has no interest.

P. F. Smith and W. B. Farley, for plaintiff. King S Spalding, for defendants.