Jackowitz v. Tingle

106 S.E.2d 44, 98 Ga. App. 463, 1958 Ga. App. LEXIS 610

• Court: Court of Appeals of Georgia
• Decided: October 24, 1958
• Docket: 37370
• Status: Published

Opinions

Quillian, Judge.

1. Where, as in this case, the plaintiff filed an amendment to the petition which materially changed the nature of the petition, a previous judgment overruling a general demurrer to the original petition did not preclude the defendant from demurring generally to the petition as amended. Code § 81-1312; Green v. Spires, 189 Ga. 719, 721 (7 S. E. 2d 246).

2. Where, as in this case, the plaintiff filed a suit in personam against the defendant, based upon a mortgage to secure a debt, the petition is subject to general demurrer. “The. object of a mortgage is to secure a debt with the property mortgaged. Carmichael v. Citizens &c. Bank, 162 Ga. 735 (134 S. E. 771). The only remedy under the mortgage is to seek to subject the property to the lien created by it. This is usually done by proceeding against the property under what is generally known as a mortgage foreclosure, and no general judgment can be taken against the mortgagor in such a proceeding.” Alropa Corp. v. Goldstein, 69 Ga. App. 168, 170 (25 S. E. 2d 116).

The judge did not err in sustaining the general demurrer to the petition.

Judgment affirmed.

Nichols, J., concurs. Felton, C. J., concurs specially. MacDougald & Feagin, John E. Feagin, for plaintiff in error. Walter W. Aycock, James 0. Goggins', contra.