McKellar v. Childs

102 S.E.2d 513, 97 Ga. App. 199, 1958 Ga. App. LEXIS 738

Opinion

Quillian, Judge.

1. The decision of this court on the former appearance of the case adjudicated the sufficiency of the answer as against a ground of demurrer then urged. The question of whether the answer was open to demurrer because it sought to set off a claim ex delicto against a cause ex contractu was not before the court and was not decided.

Decided February 19, 1958. John Henry Poole, for plaintiff in error. Reinhardt •& Ireland, Boh Reinhardt, D. C. Ireland, contra.

2. A cross-action is not valid which attempts to plead an ex delicto claim against an action ex contractu unless it is alleged that the plaintiff is either insolvent or a nonresident. There being no such allegation in the cross-bill filed by the defendant in this case the judge did not err in sustaining the motion to dismiss the cross-action. Cornett v. Ault, 124 Ga. 944, 947 (53 S. E. 460); McLendon Bros. v. Finch, 2 Ga. App. 421 (58 S. E. 690); Geer v. Cowart, 5 Ga. App. 251 (62 S. E. 1054).

Judgment affirmed.

Felton, C. J., and Nichols, J., concur.