114 Ga. 364 | Ga. | 1901
An action was brought in the city court of Dublin by J. M. Fordham, as ordinary, suing for the use of Mary Jane Mathis “ and her three minor children.” The petition is set forth in the official report preceding this opinion. To this petition the defendants filed a demurrer based upon the grounds: “1st. That there is no cause of action set forth in said petition. 2nd. That one of the heirs at law of J. N. Darsey, to wit Laura E. Garrett, was never sued in said action. 3rd. Because there is nothing set forth in said petition to predicate the suit upon, and all of the plaintiffs’ names are not set out in said petition. 4th. The defendants' were not bound at any time to said estate except by bond, and the bond which they gave has not been sued upon.” The demurrer was overruled, and the defendants excepted. They also filed an answer, the substance of which appears in the above-mentioned official report. This answer, or demurrer thereto, was stricken by the court, and thereupon a verdict in favor of the plaintiff for the amount sued for was directed; to all of which exception was taken by the defendants.
In conclusion it is proper to call attention to the fact that the rules governing good pleading apply as well to the framing of a demurrer as to the preparation of a petition which it seeks to attack. It is obvious that in the present case the defendants’ demurrer does not remotely present the point insisted upon in the argument here, viz., that the petition was defective in that the names of all the usees were not set forth therein; and this being so, the demurrer falls far short of coming up to the requisite standard of certainty which the law declares shall be observed by a defendant who seeks to take advantage of the failure of a plaintiff to conform to the requirements of good pleading.
There was no error in directing the verdict to which exception is taken. With the answer out of the way, and taking the plain
Judgment affirmed.