26 S.E.2d 478 | Ga. Ct. App. | 1943
1. The allegations of the petition are sufficient to allege partnership, and the court did not err in overruling the demurrer for any reason assigned.
2. The court committed reversible error in dismissing the plea of partnership.
The defendant Barber demurred generally on the ground that the petition failed to set out a cause of action, and specially on the grounds, (a) as being duplicitous, in that the plaintiff seeks to recover on two inconsistent theories, first as joint contractors, and second, as copartners. (b) Petition failed to allege how and in what manner the alleged indebtedness arose. (c) There is no bill of particulars attached showing how such alleged indebtedness arose, either against the defendants as copartners or as joint contractors.
By amendment, an itemized statement of the account sued on was attached. After amendment, the court passed the following order: "The within demurrer is hereby overruled for want of prosecution."
The defendant Barber also duly filed a plea of no partnership, as follows: "Comes now the defendant, Leo T. Barber, and files this his plea of no partnership and says that he is not, and was not at any time named in the petition a copartner of defendant F. M. Jones, and this defendant is therefore not liable in said suit." This plea was duly verified, and was otherwise sufficient under the law. As to this plea the court passed the following order: "The within plea is hereby dismissed for want of prosecution." Evidence was introduced. The jury returned a verdict against Jones and Barber in favor of the plaintiff in the amount sued for, and judgment was duly entered thereon. Barber excepted. He assigns error on the judgments overruling his demurrers, and also on the *626 judgment dismissing his plea of no partnership for want of prosecution. 1. It appears that at the time the case was called for trial the defendant Barber and his counsel were absent without legal excuse. The trial court passed the orders on the demurrers and the plea during such absence. There are two questions for decision: Did the court err (a) in overruling the demurrer, and (b) in dismissing the plea of no partnership for want of prosecution?
It will be observed that the allegations as to partnership are that the defendants "were joint contractors and copartners in certain contracts for the construction of portions of State Highway Route No. 27 . . and during such relationship became indebted to plaintiff. . . That said defendants are indebted to plaintiff as a result of said copartnership . ." in the sum for which suit was brought. "A direct allegation that the defendant is a member of the partnership is sufficient." Mims v. Brook,
2. Did the court commit reversible error in dismissing the plea of no partnership for want of prosecution? "When partners sue or are sued in their firm name, the partnership need not be proved unless denied by the defendants, or one of them, upon oath, on plea in abatement filed." Code, § 75-313. But for the plea of no partnership, there would have been no issue on this allegation of the *627
petition by reason of the provision of the Code section; but when a valid plea of no partnership was filed an issue was made as to partnership or no partnership, and the burden was on the plaintiff to prove partnership, as alleged. American CottonCollege v. Atlanta Newspaper Union,
The dismissal of Barber's plea was reversible error, and what took place thereafter, was, as to him, nugatory.
Judgment reversed. Broyles, C. J., and MacIntyre, J.,concur. *628