Burgin Lumber Co. v. Kirksey

47 S.E.2d 68 | Ga. | 1948

1. A suit in equity, based on separate and distinct claims against different persons, where there is no common right to be established, will be dismissed on demurrer on the ground of multifariousness. Code, §§ 3-110, 37-1007: White v. North Georgia Electric Co., 128 Ga. 539 (58 S.E. 33); Ansley v. Davis, 140 Ga. 615 (79 S.E. 454); Gordy v. Levison Co., 157 Ga. 670, 678 (122 S.E. 234); McCowan v. Snook, 175 Ga. 430 (165 S.E. 84); Longino v. Bearden, 177 Ga. 353 (170 S.E. 237); Whiddon v. Southern Auto Finance Co., 186 Ga. 726 (198 S.E. 729); Polk v. Slaton, 187 Ga. 620 (1 S.E.2d 402).

(a) The petition in the instant case, as finally amended, was multifarious, and the demurrers having been renewed to the amended petition upon that ground, among others, should have been sustained and the petition dismissed in its entirety. McCowan v. Snook, supra.

(b) The facts of this case do not bring it within the principle applied in Conley v. Buck, 100 Ga. 187 (28 S.E. 97), and Waters v. Brownlee, 136 Ga. 182 (71 S.E. 6).

2. Where a petition should have been dismissed in the lower court for multifariousness, this court will not rule upon the merits of the several claims set forth in the petition, because if we should do so, it would be possible for a plaintiff to include in one action a multitude of disconnected claims against as many separate persons, and thus procure a decision upon the merits of each, and in effect avoid the rule above announced against joining in one action separate claims against separate persons. Ansley v. Davis, supra; George W. Muller c. Co. v. Southern Seating c. Co., 147 Ga. 106 (92 S.E. 884). "As liberal as our system of pleading is, we have not reached the extent that a litigant may hale all persons against whom he has a complaint into court in one suit, and demand separate relief against each, upon entirely disassociated and unrelated matters." Martin v. Brown, 129 Ga. 562 (59 S.E. 302).

Judgment reversed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.

No. 16134. MARCH 19, 1948. Mrs. Kate (H. L.) Kirksey and others brought an equitable suit in the Superior Court of Terrell County against W. W. Hanner of that county, and Burgin Lumber Company, a corporation with its principal office and place of business in Randolph County, Georgia. After being three times amended, the petition, in substance, alleged: The plaintiffs and their predecessors in title have for the past one hundred years and longer owned and been in possession of a described tract of land in Terrell County, Georgia. The plaintiffs have individually owned it for the past twenty-three years and during that time they have had actual adverse possession of it, which possession has been open, public, notorious, peaceable and under a claim of right, and during the entire period of their ownership the land has been under fence and in cultivation. The defendant Hanner owns adjacent land and conveyed his timber by written lease to Burgin Lumber Company, but this lease did not purport to convey any of the timber on the plaintiffs' land, but expressly excepted it in recognition of their title. After the defendant, Burgin Lumber Company, had been unable to purchase the timber from the plaintiffs, it wrongfully and wilfully cut approximately ten thousand board feet of pine timber, having a value of $1000, from the plaintiffs' land, and to this extent diminished the value of their land, and by reason of the wilful trespass committed the plaintiffs are entitled to recover from the defendant company the additional sum of $1000 as punitive damages. The petition prays for a money judgment against the defendant company for $2000, and for an injunction to restrain a further cutting of timber.

It was further alleged that, notwithstanding the fact that the boundary line between the property of the plaintiffs and the defendant Hanner has been established and well defined for more than a hundred years, the defendant Hanner more than two years ago notified the plaintiffs that he intended to have the boundary lines between their respective properties processioned. Notices have been repeatedly served upon the plaintiffs fixing dates for the processioners to meet, but nothing has been done. This proceeding was not instituted in good faith and the notices served have been for the purpose of harassing and embarrassing the plaintiffs. The defendant Hanner has also threatened to survey other lines, all of which has been done as a part of a scheme on the part of the defendant Hanner to confuse the boundary lines between their respective properties. The petition prays that the defendant Hanner be enjoined from further prosecuting this proceeding.

The petition further alleged: Because of the cutting of the plaintiffs' timber, the continuous serving of notices concerning the processioning proceeding, and to terminate the controversy between the parties, the court should assume jurisdiction and declare the rights of the parties, issue a declaratory judgment and quiet the title between the plaintiffs and the defendant Hanner. For equity to assume jurisdiction and determine the rights of the parties in one action, would prevent a multiplicity of suits and a circuity of actions. An injunction should issue under the Declaratory Judgment Act of 1945, to maintain and preserve the status of the parties pending the adjudication of all the issues, and this was prayed for.

The defendant Burgin Lumber Company demurred specially to the petition and as amended upon the ground of multifariousness, and alleged that there was a misjoinder of parties defendant and causes of action. There were other grounds of special demurrer. The court overruled all of the demurrers and that judgment is excepted to.