178 Ga. 6 | Ga. | 1933
Lead Opinion
Huson lee & Coal Company, P. J. Huson, H. T. Huson, and W. J. Huson brought a petition to set aside a judgment, and for injunction, alleging substantially the following: The City of Covington obtained a verdict and judgment against the plaintiffs, in September, 1932, for $406.75, with interest and costs, for electric current and supplies furnished by the city. A motion for new trial was made and subsequently dismissed. The indebtedness was incurred under an oral contract for furnishing electrical current and supplies for the year 1931 in the operation of the ice plant of the plaintiffs; to the effect that the “defendants were to furnish electric current to plaintiffs a current consisting of 220 volts minimum to the plaintiffs’ motors, continuously and constantly, day and night, for 24 hours each day for 365 days. Said current was to be paid for monthly for the number of kilowatts consumed during each month at a rate per kilowatt as the rate published by the Georgia Power Company.” The defendant was unable to deliver the necessary current to operate the ice plant of the plaintiffs at maximum capacity, on account of inadequate wiring of the power-line of the defendant, and on account of faulty installation by the defendant of wiring and motors of plaintiffs’ equipment. The plaintiffs suffered a loss in operating their plant, and' the current was in excess of what should have been used, due to this faulty installation of wires and motors by the defendant’s agent, H. 0. Whelchel; which loss was in excess of the charges made by the defendant against the plaintiffs, and in excess of the judgment obtained by the defendant against plaintiffs in the suit above referred to. The plaintiffs did not know the reason why they could not get the necessary power until after the trial of the ease brought by the city against them, and therefore could not set it up as a defense; they were kept from making an investigation to ascertain the cause, by reason of the misrepresentations of the agents in charge of the electric department of the city, who were experts and supposed to know about electricity and to be able to tell what was the matter; and plaintiffs relied on the statements made to them by said agents of the city, and they have not had a fair hearing in said case; a fraud was perpetrated on them by the said agents of
A demurrer was sustained and the petition was dismissed. This judgment was excepted to because the “ruling and decision is void because rendered before the appearance term of said caseand because the judgment is contrary to law.
By the act of 1925 (Ga. L. 1925, p. 97), which is “an act to amend section 5630 of the Civil Code of the State of Georgia of 1910, dealing with the different modes of defense by a defendant, and prescribing the time for filing thereof and the hearing thereon, by adding at the end thereof the following words, to wit: ‘In equity causes, however, where extraordinary relief is sought, the trial court may hear, pass upon and determine all demurrers in such causes at any interlocutory hearing before the appearance or first term.’” 13 Park’s Code Supp. 1926, and Michie’s Code, § 5630. This is a case in equity where extraordinary relief is sought, and under the above act the judge did not err in passing upon and determining the case on demurrer at the interlocutory hearing. See Ward v. Parks, 166 Ga. 149 (142 S. E. 690); Wilder v. Thompson, 169 Ga. 812 (151 S. E. 806); Meena v. Piedmont Realty Co., 173 Ga. 844 (162 S. E. 144).
This is a suit to set aside a judgment obtained by the City of Covington on an open account against the plaintiffs for electrical current and supplies furnished by the city, and to enjoin the city from proceeding with the enforcement of the judgment. The petition does not set out any matter of defense that could not have been known to the plaintiffs and pleaded in their defense in the former suit, and no fraud is alleged that would invalidate the judgment. The Civil Code of 1910 provides that “The judgment of a court
Under the allegations of the petition and the rulings cited above, the court did not err in sustaining the demurrer and in dismissing the petition. Judgment affirmed.
Rehearing
ON MOTION FOR REHEARING.
The plaintiffs insist that this court has “ overlooked a fundamental rule of equity practice, that in passing on a demurrer the facts stated in this petition are to be taken as true.”
A demurrer admits only facts well pleaded. The above-quoted allegations of the petition will not be construed as allegations of fact, but as conclusions of the pleader. Neither the trial court nor this court was bound to accept as true, although alleged in the petition, that petitioners could not by the employment of competent electricians have ascertained all of the facts alleged prior to the original trial of the case in which the judgment sought to be set aside was rendered. The motion for rehearing is denied.