28 S.E.2d 124 | Ga. | 1943
The judgment of January 13, 1943, sustaining ground 1 of the demurrer filed on October 29, 1942, is not excepted to, and therefore it is the law of the case. Clark v. Ganson,
Judgment affirmed on main bill of exceptions. Cross-bill of exceptions discussed. All the Justices concur.
Beatus demurred to the petition as thus amended on several grounds, number 1 being that said petition as amended set forth no cause of action against the defendant. On January 13, 1943, the court entered judgment sustaining all grounds of the general demurrer to the petition as amended, with leave to amend within twenty days "to meet said grounds of demurrer, in the absence of which said petition of the plaintiffs as amended shall stand dismissed." *128 On January 29, 1943, the plaintiffs offered and had allowed subject to objections and demurrer an amendment in substance as follows: The agreement of May 5, 1938, was oral and was made for the consideration that Max Gluck, who was the controlling interest on the board of directors of Rich Stores Inc., would allow Rich Stores Inc. to convey its interest in the land to William Beatus, and this agreement was carried out on June 22, 1938. The written agreement of June 23, 1938, was made a part of the amendment as Exhibit "A." From May 5, 1938, Beatus, as trustee for Max Gluck and himself, controlled the property and collected the rents and profits, and with such rents and profits paid all taxes, insurance, interest, and principal on loans, and has made no accounting therefor. The yearly income from the property was at least $12000, and the amounts necessary to be paid would not exceed that sum. He has never called upon Gluck to pay any part of such charges. He had in his hands enough assets belonging to himself and Gluck to pay the Eubank loan when it matured. The plaintiffs did not know positively of the foreclosure sale until the middle of 1941, up to which time Beatus had made no accounting to Gluck. The amendment recited that certain cases were filed in Fulton County courts involving the property, and that they were still pending. In one of these cases Darling Stores Corporation is seeking an accounting from William Beatus, and it sought to amend its petition by seeking a decree of title, but the amendment was disallowed.
To this amendment the defendant William Beatus filed written objections asserting that it did not meet the terms of the judgment on demurrer dated January 13, 1943, and that, together with the petition, it should be dismissed. To the petition as thus amended Beatus filed demurrers renewing his previous demurrers filed on October 29, 1942, ground 1 of which was that "said petition as amended sets forth no cause of action against this defendant." On June 23, 1943, the court rendered judgment sustaining ground 1 of the defendant's demurrer filed October 29, 1942, and overruled and denied the written motion to dismiss. The plaintiffs except to the judgment sustaining the demurrer, and the defendant by cross-bill excepts to the judgment overruling and denying the motion to dismiss.