Wilkinson v. Smith

176 S.E. 373, 179 Ga. 507, 1934 Ga. LEXIS 321

• Court: Supreme Court of Georgia
• Decided: September 19, 1934
• Docket: No. 9935
• Status: Published

Opinion

Atkinson, J.

1. Objections to a petition on the grounds of multifariousness and misjoinder of parties go to the form and not to the substance of the petition, and therefore must be raised by special demurrer. Georgia Railroad & Banking Co. v. Tice, 124 Ga. 459 (52 S. E. 916, 4 Ann. Cas. 200).

No. 9935. September 19, 1934. Grady Gillon, for plaintiff in error. Edward F. Taylor, contra.

2. In an equity suit a demurrer to the petition as amended contained general grounds that the allegations failed to allege a cause of action, etc., and special grounds of multifariousness and misjoinder of parties. In the bill of exceptions filed by the defendant the sole assignment of error is that “ after hearing arguments on the general demurrer the court overruled said demurrer, to which ruling defendant . . then and there excepted, and here and now excepts and assigns the same as error as being contrary to law, and says that the court erred in refusing to sustain said demurrer on the grounds set forth therein.” Held, that this assignment of error relates only to the grounds of general demurrer, and does not raise any question for decision on the subjects of multifariousness or misjoinder of parties.

3. In the brief of the attorney for the plaintiff in error there is no insistence upon the general grounds of demurrer, to which alone the above assignment of error relates; and consequently, under the uniform rulings of this court, that assignment of error will be treated as abandoned.

4. The brief of the attorney for the plaintiff in error discusses the questions of multifariousness and misjoinder of parties; but those questions were not raised by the assignment of error, and can not be considered.

Judgment affirmed.

All the Justices concur.