Salmon Butane Gas & Appliance Co. v. Walraven

Court of Appeals of Georgia

Salmon Butane Gas & Appliance Co. v. Walraven

62 S.E.2d 418, 82 Ga. App. 799, 1950 Ga. App. LEXIS 1213

CourtCourt of Appeals of Georgia

DecidedDecember 1, 1950

Docket33256

StatusPublished

This text of 62 S.E.2d 418 (Salmon Butane Gas & Appliance Co. v. Walraven) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Salmon Butane Gas & Appliance Co. v. Walraven, 62 S.E.2d 418, 82 Ga. App. 799, 1950 Ga. App. LEXIS 1213 (Ga. Ct. App. 1950).

Pincite

Opinion

Felton, J.

1. The motion to dismiss the writ of error on the ground that the same contained no assignment of error is without merit and is denied.

2. Plaintiff’s original petition alleged damage to plaintiff by reason of defendant’s improper and negligent installation of a water heater in plaintiff’s dwelling house, and sounded in tort. An amendment allowed thereto, which did not strike the original allegations sounding in tort, alleged damage to plaintiff by reason of defendant’s breach of an express contract to properly install said water heater. The petition as amended contained two inconsistent theories of recovery in a single count and such amended petition was subject to the special demurrer of the defendant pointing out the duplicity. City of Albany v. Jackson, 33 Ga. App. 30(1) (125 S. E. 478).

3. An exception pendente lite which recites that the court erred in overruling a designated demurrer to the petition makes a proper assignment of error.

The court erred in overruling defendant’s special demurrer pointing out duplicity in the amended petition, and all further proceedings were nugatory.

Judgment reversed.

Sutton, C.J., and Worrill, J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Felton, J.

1. The motion to dismiss the writ of error on the ground that the same contained no assignment of error is without merit and is denied.

2. Plaintiff’s original petition alleged damage to plaintiff by reason of defendant’s improper and negligent installation of a water heater in plaintiff’s dwelling house, and sounded in tort. An amendment allowed thereto, which did not strike the original allegations sounding in tort, alleged damage to plaintiff by reason of defendant’s breach of an express contract to properly install said water heater. The petition as amended contained two inconsistent theories of recovery in a single count and such amended petition was subject to the special demurrer of the defendant pointing out the duplicity. City of Albany v. Jackson, 33 Ga. App. 30(1) (125 S. E. 478).

3. An exception pendente lite which recites that the court erred in overruling a designated demurrer to the petition makes a proper assignment of error.

The court erred in overruling defendant’s special demurrer pointing out duplicity in the amended petition, and all further proceedings were nugatory.

Judgment reversed.

Sutton, C.J., and Worrill, J., concur.

Cite This Page — Counsel Stack

Bluebook (online)

62 S.E.2d 418, 82 Ga. App. 799, 1950 Ga. App. LEXIS 1213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salmon-butane-gas-appliance-co-v-walraven-gactapp-1950.

Opinion

Related

Cite This Page — Counsel Stack