34 S.E.2d 615 | Ga. Ct. App. | 1945
The court did not err in sustaining the demurrer to the motion to set aside the judgment and in dismissing the motion.
On January 29, 1945, the defendant filed a motion to set aside the judgment in the case, which when amended was substantially as follows: that no cause of action was set out in the petition; that it was duplicitous; that there was an insufficient description of the property sought to be recovered; that no demand was made prior to filing suit; that no proper bail-affidavit was made and filed with the clerk of the court and copy affixed to the original petition or process; that paragraphs 2 and 3 of the judgment were not authorized; that the judgment did not follow the verdict; that the property delivered by the defendant to the sheriff did not include the money sued for; that the money sued for was not sufficiently described; that the defendant's proffered amendment to his answer was disallowed; that the plaintiff was not authorized to enter judgment reciting what had or had not been proved. To this motion to set aside the judgment the plaintiff demurred on the grounds that the motion failed to set forth any valid reason why *591 the judgment should be set aside; that the allegations that the description of the property was too vague and indefinite, etc., should have been taken advantage of by special demurrer, and any defects in said petition were cured by verdict and judgment; that the failure of the petition to allege demand and the failure to file a proper bail-affidavit, etc., are without merit, and, if any such defect appears from the petition, such defect was cured by verdict and judgment; that the allegations that the judgment does not follow the verdict are untrue, and are conclusions of the pleader; that the fact the property delivered by the defendant to the sheriff did not include the money sued for does not appear upon the face of the record, and are not grounds for setting the judgment aside; that if the money sued for was not sufficiently described in subparagraphs (c) and (d), this defect should have been taken advantage of by special demurrer at the first term, and was cured by verdict and judgment; that the allegations referred to in the defendant's proffered amendment to his answer do not appear on the face of the record, and further no exceptions were filed to the order of the court disallowing the amendment, and that such judgment is now the law of the case; that the allegations that the plaintiff was not authorized to enter judgment reciting what had or what had not been proved was a conclusion of the pleader.
The plaintiff renewed the demurrer to the motion as amended, which was sustained, and the motion to set aside the judgment was dismissed. The defendant excepted. The Code, § 110-702, provides: "When a judgment has been rendered, either party may move in arrest thereof, or to set it aside for any defect not amendable which appears on the face of the record or pleadings," and § 110-704 is as follows: "If the pleadings are so defective that no legal judgment can be rendered thereon, the judgment will be arrested or set aside." But, "A judgment may not be arrested or set aside for any defect in the pleadings or record that is aided by verdict or amendable as matter of form." § 110-705.
The petition in the trover case set out a cause of action and *592
was sufficient to withstand the demurrer ore tenus or the oral motion to dismiss, which in effect amounted to a general demurrer. "A general demurrer should not prevail where any part of the petition is good." Mayor c. of Athens v. Smith,
On the question of demand not being alleged in the petition, the petition does state that "the defendant refuses to deliver the *593
above described property to your petitioner," and the presumption, therefore, is that demand had been made. "Where the defendant is in possession at the time suit is entered, proof of demand and refusal is necessary only to save the plaintiff the costs of court in case the defendant should disclaim title to the property." Pearson v. Jones,
Grounds 6, 8, and 10 of the motion to set aside the judgment complain that paragraphs 2 and 3 of the judgment hereinbefore set out do not sufficiently describe the cash therein referred to, and do not follow the verdict, and that such a judgment could not be based on the verdict; that the court was without authority to declare title to said cash to be in the plaintiff, and to direct the sheriff to deliver said cash to the plaintiff. The cash here involved was described in the foregoing subparagraphs, and so far as the motion to set aside the verdict is concerned, was presumably described either by the letter or other evidence introduced upon the trial of the case. See Harris v. Hines,
Ground 11 of the motion to set aside the judgment complains that the court disallowed the proffered amendment to the defendant's answer to the petition. No exceptions pendente lite were filed to the refusal of the court to allow the amendment, and for that reason this ground of the motion can not here be considered. "Unless a pleading shows on its face that a cause of action does not in fact exist, or the pleading is so utterly defective that it could not be amended at all, or the defect is of such character as renders unenforceable or meaningless a verdict and judgment based thereon, defects in the pleading are cured by the verdict, on the theory that there is a conclusive presumption that the jury had before it sufficient evidence to authorize the verdict on every essential ingredient, necessary for its rendition, which would have been admissible or relevant under any proper amendment." Watkins Co. v. Herring,
The court did not err in sustaining the demurrer to the motion to set aside the judgment and dismissing it.
Judgment affirmed. Felton and Parker, JJ., concur.