Wright v. Lester

127 S.E.2d 193, 106 Ga. App. 452, 1962 Ga. App. LEXIS 729

• Court: Court of Appeals of Georgia
• Decided: July 6, 1962
• Docket: 38971
• Status: Published

Opinions

Bell, Judge.

The judgment of this court in Wright v. Lester, 105 Ga. App. 107 (123 SE2d 672), was reversed in two particulars by the Supreme Court in Wright v. Lester, 218 Ga. 31 (126 SE2d 419). Accordingly, the judgment of this court is modified to conform to the judgment of the Supreme Court, which is made the judgment of this court to the extent the Supreme Court disapproved and overruled it, as set forth in the following divisions.

1. That portion of the language of Division 1 of the opinion of this court in Wright v. Lester, 105 Ga. App. 107, 111-114, which purported to construe Art. XII, Sec I, Par. V, of the Constitution of 1945 (Code Ann. § 2-8005) is withdrawn in accordance with the Supreme Court’s disapproval of that language of the decision. The other holdings and language in Division 1 remain unaffected.

2. The Supreme Court has ruled that the particular character of the amended petition in this case required that the time of the secret meetings between the defendant and the plaintiff’s wife should be specifically alleged and that this requirement was not met by the allegation that they occurred between two designated dates spanning a period of 14 months and 21 days, nor by an allegation that such facts were unknown to the plaintiff but well known to the defendant. The Supreme Court has held that the special demurrers to paragraphs 9 and 12 of the petition as amended should have been sustained.

In accordance with this ruling Divisions 7 and 8 of the prior opinion of this court are modified to hold that the trial court erred in overruling special demurrers 2, 4 and 6 of the renewed and additional demurrers of defendant to paragraphs 9 and 12 of the petition as amended.

The remainder of the holdings and language of these divisions 7 and 8 remain unaffected.

3. The Supreme Court having ruled that with the foregoing exceptions the assignments of error in the petition for certiorari did not show reversible error, the opinion and judgment of this court in Wright v. Lester, supra, otherwise remain the opinion and judgment of this court.

Decided July 6, 1962 Rehearing denied July 31, 1962. Houston White, for plaintiff in error. Hester & Hester, Bichard M. Hester, Frank B. Hester, contra.

Judgment affirmed in part; reversed in part.

Carlisle, P. J., Frankum, Jordan, Hall, Eberhardt, and Bussell, JJ., concur. Felton, C. J., dissented on motion for rehearing, with Nichols, P. J., concurring in the dissent.