Spence v. Rodgers

Court of Appeals of Georgia

Spence v. Rodgers

7 S.E.2d 787, 61 Ga. App. 854, 1940 Ga. App. LEXIS 288

CourtCourt of Appeals of Georgia

DecidedMarch 6, 1940

Docket27904.

StatusPublished

Cited by5 cases

This text of 7 S.E.2d 787 (Spence v. Rodgers) 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

Spence v. Rodgers, 7 S.E.2d 787, 61 Ga. App. 854, 1940 Ga. App. LEXIS 288 (Ga. Ct. App. 1940).

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Per Curiam.

A suit for damages was brought by Mrs. Minnie Rodgers, for alleged negligent homicide of her son, against J. Render Spence and the Metropolitan Casualty Company, his insurer. Spence filed a general and two special demurrers to the petition, one on the ground of misjoinder of parties defendant and the other on misjoinder of causes of action. The court in one order overruled the general demurrer and sustained the two special demurrers, but did not in the order dismiss the action. Multifariousness and misjoinder are subjects of special demurrer only; and if a petition is adjudged to be subject to demurrer on either ground, the plaintiff has the right to elect as to his cause of action or as to the party against whom he will proceed. The record here does not disclose that the plaintiff amended pr offered to amend her petition after the special demurrers were sustained. In the absence of an amendment curing the defects in the petition, after the special demurrers were sustained, the court erred in not dismissing the action. The judgment is reversed, with direction that the plaintiff be given an opportunity to amend by electing as to the defendant against whom she will proceed.

Judgment reversed, with direction.

Stephens, P. J., and Sutton, J., concur.

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Per Curiam.

A suit for damages was brought by Mrs. Minnie Rodgers, for alleged negligent homicide of her son, against J. Render Spence and the Metropolitan Casualty Company, his insurer. Spence filed a general and two special demurrers to the petition, one on the ground of misjoinder of parties defendant and the other on misjoinder of causes of action. The court in one order overruled the general demurrer and sustained the two special demurrers, but did not in the order dismiss the action. Multifariousness and misjoinder are subjects of special demurrer only; and if a petition is adjudged to be subject to demurrer on either ground, the plaintiff has the right to elect as to his cause of action or as to the party against whom he will proceed. The record here does not disclose that the plaintiff amended pr offered to amend her petition after the special demurrers were sustained. In the absence of an amendment curing the defects in the petition, after the special demurrers were sustained, the court erred in not dismissing the action. The judgment is reversed, with direction that the plaintiff be given an opportunity to amend by electing as to the defendant against whom she will proceed.

Judgment reversed, with direction.

Stephens, P. J., and Sutton, J., concur.

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Bluebook (online)

7 S.E.2d 787, 61 Ga. App. 854, 1940 Ga. App. LEXIS 288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spence-v-rodgers-gactapp-1940.

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