51 S.E.2d 836 | Ga. | 1949
1. Where the court sustained a general demurrer with permission to amend within five days by making as a party defendant a corporation whose charter the petitioners sought to cancel, the effect of the filing and allowance of the required amendment was to leave the general demurrer overruled, and the judgment was not final. Ramey v. O'Byrne,
(a) The contention that the court erred in failing to sustain the original demurrer unconditionally, on the ground that the petition was not amendable because there was nothing to amend by, is without merit. The petition named as defendants numerous persons who, it was alleged, were seeking to incorporate and use substantially the same corporate name as that employed by the petitioners in an unincorporated society or club. Atlanta Club of the Deaf, of which they were members in good standing, and without notice as required by the law (Code, § 22-202) of their intention to apply for a charter in the name of "Atlanta Club for the Deaf, Incorporated," and that unless enjoined they would confiscate money and other assets of the unincorporated club and transfer all to the corporation, thus setting forth a cause of action for equitable *863
relief against the individual defendants. Richter v. Richter,
2. The corporation, having demurred to the merits of the petition after it was amended making it a party, waived its right to object to its being made a party defendant, and the assignment of error in this respect is without merit.
3. The petition as amended retained all the allegations and prayers of the original petition and named as an additional defendant Atlanta Club for the Deaf, Incorporated, whose charter the petitioners sought to cancel, while also seeking to enjoin the individual defendants from committing the unlawful acts alleged in the petition. The petition as amended set forth a cause of action against the corporation, as well as the individual defendants, and the court did not err in overruling the general demurrer thereto. Code, § 22-202; M. E. Church South v. Decell,
Judgment affirmed. All the Justices concur.
The defendants demurred generally to the petition on the ground that no cause of action at law or in equity was set forth against the defendants. The court sustained the demurrer, but allowed the petitioners five days in which to amend the prayer which sought to have the charter of "Atlanta Club for the Deaf, Incorporated," set aside and canceled. By amendment, allowed by the court, the petitioners alleged: that at the time of filing their original petition the period for publication of the notice of *865 the application had not expired, although the court had signed an order granting the said charter; that since the filing of the suit the period of time for publishing the advertisement had elapsed; that under all the circumstances the Atlanta Club for the Deaf, Incorporated, is now considered to be a necessary party, but such corporation has no legal officers upon whom the amendment may be served, or any officers or agents, so far as the petitioners know, upon whom service may be had; and it was prayed that Atlanta Club for the Deaf, Incorporated, be made a party defendant. The said corporation was by the court made a party defendant. All the defendants demurred to the petition as amended on the ground that it did not set forth a cause of action either at law or in equity. The court overruled the demurrer.
By direct bill of exceptions, eighteen days after the first order of the court, the defendants assign error on, (1) the judgment sustaining the demurrer but allowing the petitioners five days in which to amend; (2) the order making the corporation, Atlanta Club for the Deaf, Incorporated, a party defendant; and (3) the judgment overruling the demurrer to the petition as amended.