Williams v. Appliances, Inc.

Court of Appeals of Georgia

Williams v. Appliances, Inc.

86 S.E.2d 632, 91 Ga. App. 608, 1955 Ga. App. LEXIS 819

CourtCourt of Appeals of Georgia

DecidedMarch 8, 1955

Docket35567

StatusPublished

Cited by22 cases

This text of 86 S.E.2d 632 (Williams v. Appliances, Inc.) 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

Williams v. Appliances, Inc., 86 S.E.2d 632, 91 Ga. App. 608, 1955 Ga. App. LEXIS 819 (Ga. Ct. App. 1955).

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Opinion

Felton, C. J.

1. A general assignment in a bill oí exceptions which, assigns error on the overruling of an oral motion to dismiss, in the nature of a general demurrer, on the ground that the ruling was contrary to law is a sufficient assignment of error. Johnson v. Porter, 115 Ga. 401, 403 (1) (41 S. E. 644); Bennett v. Benton, 162 Ga. 139 (133 S. E. 855); Greenwood v. Greenblatt, 173 Ga. 551 (161 S. E. 135); O’Neal v. Miller, 9 Ga. App. 180 (2) (70 S. E. 971). The motion to dismiss the writ of error is denied.

2. A motion to dismiss in the nature of a general demurrer may be made in a case marked “in default” at any time before verdict without opening the default, and a failure of the court to sustain the motion may be made the subject of a direct bill of exceptions. O’Connor v. Brucker, 117 Ga. 451 (3) (43 S. E. 731); Thigpen v. Bituminous Cas. Corp., 67 Ga. App. 367 (20 S. E. 2d 213).

3. The designation “J. D. Robinson, Inc.” connotes a corporate entity. Minchew v. Nahunta Lumber Co., 5 Ga. App. 154 (62 S. E. 716).

4. The petition named J. D. Robinson, Inc. (which connotes a corporation), John B. Williams, and Doyle Healan as defendants. The bill of particulars showed that the materials sued for were sold to J. D. Robinson, Inc. Nothing in the bill of particulars refers to the defendants Williams and Healan. Since the plaintiff chose to amplify his petition by annexing a bill of praticulars, it is bound by the allegations contained therein. Exhibits attached to a petition control over its general allegations. Hurt & Quinn, Inc. v. Keen, 89 Ga. App. 4, 6 (2) (78 S. E. 2d 345). Strickland v. Lowry National Bank, 140 Ga. 653 (2) (79 S. E. 539). Since the exhibits showed that the items sued for were sold to the defendant J. D. Robinson, Inc., and there is nothing contained in the petition to show why the defendants Williams and Healan are liable for such items (see Code § 20-401 (2)), the petition failed to state a cause of action against the defendants Williams and Healan.

The court erred in denying the motions to dismiss the action.

Judgment reversed.

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Felton, C. J.

1. A general assignment in a bill oí exceptions which, assigns error on the overruling of an oral motion to dismiss, in the nature of a general demurrer, on the ground that the ruling was contrary to law is a sufficient assignment of error. Johnson v. Porter, 115 Ga. 401, 403 (1) (41 S. E. 644); Bennett v. Benton, 162 Ga. 139 (133 S. E. 855); Greenwood v. Greenblatt, 173 Ga. 551 (161 S. E. 135); O’Neal v. Miller, 9 Ga. App. 180 (2) (70 S. E. 971). The motion to dismiss the writ of error is denied.

2. A motion to dismiss in the nature of a general demurrer may be made in a case marked “in default” at any time before verdict without opening the default, and a failure of the court to sustain the motion may be made the subject of a direct bill of exceptions. O’Connor v. Brucker, 117 Ga. 451 (3) (43 S. E. 731); Thigpen v. Bituminous Cas. Corp., 67 Ga. App. 367 (20 S. E. 2d 213).

3. The designation “J. D. Robinson, Inc.” connotes a corporate entity. Minchew v. Nahunta Lumber Co., 5 Ga. App. 154 (62 S. E. 716).

4. The petition named J. D. Robinson, Inc. (which connotes a corporation), John B. Williams, and Doyle Healan as defendants. The bill of particulars showed that the materials sued for were sold to J. D. Robinson, Inc. Nothing in the bill of particulars refers to the defendants Williams and Healan. Since the plaintiff chose to amplify his petition by annexing a bill of praticulars, it is bound by the allegations contained therein. Exhibits attached to a petition control over its general allegations. Hurt & Quinn, Inc. v. Keen, 89 Ga. App. 4, 6 (2) (78 S. E. 2d 345). Strickland v. Lowry National Bank, 140 Ga. 653 (2) (79 S. E. 539). Since the exhibits showed that the items sued for were sold to the defendant J. D. Robinson, Inc., and there is nothing contained in the petition to show why the defendants Williams and Healan are liable for such items (see Code § 20-401 (2)), the petition failed to state a cause of action against the defendants Williams and Healan.

The court erred in denying the motions to dismiss the action.

Judgment reversed.

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Bluebook (online)

86 S.E.2d 632, 91 Ga. App. 608, 1955 Ga. App. LEXIS 819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-appliances-inc-gactapp-1955.

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