181 Ga. 774 | Ga. | 1936
Sudie Silas filed her petition against the Liberty Lumber Company, I. E. Richard, and Black Cypress Lumber Company, praying that the charters of the two corporations be declared null and void because of nonuser and misuser; that the court declare that the property used by Richard in the operation of the Liberty Lumber Company, now claimed to be his individual property, and the'property of the Black Cypress Lumber Company be subjected to petitioner’s claim against the Liberty
The only question before us is whether the petition as amended stated a cause of action. It is well settled that pleadings are to be construed strictly against the pleader; but it is also a rule that a petition assailed by demurrer must be construed as a whole, and ■what may appear to be lacking in one paragraph may correctly and justly be supplied, if the omitted statements are found in some other part of the petition. The petitioner charges conspiracy between the defendants to relieve themselves, and especially Eichard,
It is alleged, that after execution of this agreement, when an effort was made to levy the execution on the property removed to Chatham County, Richard claimed the property as belonging to him, and claimed that he was then operating the business as the Black Cypress Lumber Company; that the agreement between Richard and the Liberty Lumber Company, in the attempt to establish ownership of all the property of that company in Richard, was made after the fatal injuries had been received by the petitioner’s husband; that Richard had acquired sole ownership, and was at that time buying property in his own name and making contracts with himself and the Liberty Lumber Company, so there would be no property on which, creditors or those having claims against that compahy could levy; and that the Black Cypress Lumber Company was created and control thereof secured by Richard for the purpose of hindering, delaying, and defrauding creditors of the Liberty
In view of what we have said, the general demurrer that the petition “sets out no cause of action” was correctly overruled. In support of the proposition that the petition has no equity the cases of Mullins v. Christopher, 36 Ga. 584, and Bishop v. Bussey, 164 Ga. 642 (139 S. E. 212), are cited. In the Christopher case this court held that if a “court of equity grant a new trial after a judgment rendered at law, it should only be done on a proper ease being made. This is a power which should be exercised with great
Ground 3 of general demurrer is that insolvency of the defendants is not alleged. A persual of the petition shows that sufficient facts are alleged in different paragraphs of the petition to require the plaintiff to prove insolvency as completely as if insolvency as to each one of the defendants had been categorically stated and repeated. Ground 4 is that the allegations are not sufficient to entitle plaintiff to the relief prayed for. It is our opinion that the allegations are sufficient to entitle her to the greater portion of the relief prayed for. We have frequently held that a petition can not be dismissed on general demurrer if the plaintiff is entitled to recover anything for which he prays; and while there may be some
The defendants filed special demurrers on four grounds. The first insists that the allegations of fraud are not sufficiently specific, are too vague and obscure, and are mere conclusions of the pleader. After careful consideration of these allegations in connection with other parts of the petition, we are of the opinion that the court did not err in overruling this ground. In ground 3 it is insisted that the allegations are not sufficient,'in that the materiality as evidence of the books and documents referred to is not alleged, nor is the description of the books, records, etc., sufficiently given, the reference thereto being too extensive in range and vague in description; and that “the express reasons given for the desired production of said books and records, and the obvious implications therefrom, are so utterly unwarranted, scurrilous, and insulting as to have no place in the records of a court of equity.” We are of the opinion that the materiality of the evidence is easily inferable, and the description of the books, records, etc., is sufficiently given, and is not too extensive in range or vague in description. The contention that the reasons given are so utterly unwarranted, scurrilous, and insulting as to have no place in the records of a court of equity is absolutely unsupported. It is charged that the conduct of the defendants was fraudulent, -and strong circumstances are brought to support the charge of fraud; but no language is used that is either scurrilous or insulting. Ground 3 was cured by amendment, for a copy of the execution was added. Ground 4 asserts that there is a misjoinder of parties, in that the allegations do not show that the Black Cypress Lumber Company is a proper party. For the reasons heretofore stated, that company was a proper party, and perhaps a necessary party, in view of the allegations as to conspiracy. The court did not err in holding that there was no misjoinder of parties defendant.
Judgment affirmed.