142 Ga. 834 | Ga. | 1914
An equitable petition alleged in substance as follows: A number of suits were brought against a firm. In them the plaintiff in the equitable petition was sued as a member of the firm. In fact she was not a member of the firm, but being a widow of inexperience, and having nó adviser except her son who was a member of the firm, she conferred with him with reference to preventing judgment being obtained against her. He saw the attorneys of the plaintiffs in the common-law actions, the latter being non-residents, and informed them that
(а) Accordingly, it was erroneous to dismiss such a petition on general demurrer.
(б) The case does not depend upon the rule of court that agreements between counsel in regard to matters of practice in the case must be in writing in order to be enforceable, but upon the question of whether the plaintiff acted upon certain statements and assurances as to the dismissal of suits, so that it would operate upon her as a fraud to take advantage of the fact that she did not file pleas in due time. The ruling in the case of Mathews v. Bishop, 106 Ga. 564 (32 S. E. 631), is not applicable.
(c) Where an equitable petition of the character above indicated was filed, and a demurrer thereto was interposed, the court could not look to the denials of the allegations in the answer for the purpose of sustaining the demurrer. The one affects the sufficiency of the allegations in themselves; the other goes to the question of whether they are true, or whether, on account of other facts not appearing on the face of the petition, the plaintiff is prevented from recovery.
Judgment reversed.