18 S.E.2d 516 | Ga. Ct. App. | 1942
The petition as amended set forth a cause of action. The court properly overruled the demurrers to paragraphs 1 and 2 of the petition as amended; erred in sustaining demurrers to paragraphs 3, 4, and 21-26 inclusive; properly sustained the demurrer to paragraph 28; erred in sustaining demurrers to paragraphs 36 and 37 and in striking them; and erred in dismissing the action.
The petition was amended as follows: "Now come the plaintiffs in the above styled case and with leave of this court, amend their petition heretofore filed by striking the names of Spencer Coleman et al. suing for the use of Lamar Clay, and substituting in place thereof the name of the usee, Lamar Clay, in his own right."
The defendant demurred as follows: "(1) That there is a misjoinder of plaintiffs and a misjoinder of causes of action. The suit is brought by the petitioners for the use of Lamar Clay, and can not be so brought unless the legal interest to the amount sought to be recovered is in petitioners, and if such legal interest is in petitioners, they can not join in one and the same action against the defendant for the recovery thereof, but must each separately sue for the amount of the cash bond deposited by them. (2) There is no proper party plaintiff, because of the fact that the petition shows on its face that the money sought to be recovered was and is the property of Lamar Clay, and that the petitioners have no legal title thereto or legal interest therein, and the plaintiff without a legal title to or legal interest in the money sought to be recovered in this action can not sue therefor for the use of *549 another, but the action should be brought by Lamar Clay, the person in whom the petition shows the legal title to the money in question is vested. (3) The petition does not as a whole, nor does any part thereof, set forth a cause of action against the defendant. (4) The defendant demurs to and moves to strike the allegations contained in paragraphs 21 through 26, both inclusive, and to the allegations contained in 28 of said petition on the ground that the matter set forth therein is entirely irrelevant to the cause of action sued upon by plaintiffs herein. (5) Defendant demurs to allegations contained in paragraph 36 of said petition on the ground that the matter set forth therein is a mere conclusion of the pleaders without allegations of supporting fact. (6) Defendant demurs to and moves to strike allegations contained in paragraph 37 of said petition on the ground that the matter set forth therein is a mere conclusion of the pleaders without allegations of supporting fact. Wherefore, defendant prays that he have judgment of the court on these his demurrers."
The order on the demurrer was as follows: "Upon consideration of the defendant's demurrer to the petition in the above stated case, it is considered, ordered and adjudged as follows: (1) The petition having been amended so as to proceed in the name of the usee as sole plaintiff, paragraphs 1 and 2 of the demurrer are overruled. (2) Paragraph 3 of the demurrer is sustained. (3) Paragraph 4 of the demurrer is sustained, and paragraphs 21 through 26, inclusive, and paragraph 28, are stricken. (4) Paragraph 5 of the demurrer is sustained and paragraph 36 of the petition is stricken. (5) Paragraph 6 of the demurrer is sustained and paragraph 37 of the petition is stricken. (6) Having sustained paragraphs 3, 4, 5, and 6 of the demurrer, said petition as amended is dismissed."
It will be noted from the allegations of the petition that the money in question was paid to the defendant and that he still holds it. We think the petition sets out a cause of action, when considered under the rulings of DennisonManufacturing Co. v. Wright,
In our opinion the money was paid involuntarily. The plaintiff is entitled to recover the same under the principles laid down inParrot v. Wilson,
Judgment reversed. Broyles, C. J., and MacIntyre, J., concur.