187 Ga. 620 | Ga. | 1939
The plaintiff, as executor, sued in the superior court a person who had obtained a judgment for $1000 against him in the municipal court, which judgment had been affirmed by the Court of: Appeals (see Polk v. Slaton, 54 Ga. App. 328, 187 S. E. 846), and joined in the suit the former firm of attorneys who had obtained that judgment and a successor firm of attorneys who had obtained a separate judgment for $1000 attorneys’ fees against him in the municipal court; also the successors of the two latter firms of attorneys, together with another attorney with an alleged unknown interest in these judgments, and the marshal and deputy marshal of the municipal court. The petition, in one count, sought an injunction against the attorneys and the officers of the municipal court to prevent them from selling property levied on under one of the executions, and from levying the execution which had issued under the other judgment. It prayed that both judgments be decreed void; that the executions be canceled on account of alleged fraud and mistake; that the two municipal-court “suits” be “consolidated” with this case; that in another ease filed by some of the attorneys for another person in the same superior court, and dismissed by them at their client’s request about four
1. This case is controlled by the rulings in Whiddon v. Southern Auto Finance Co., 186 Ga. 726 (supra), where it was held that the petition against three defendants was subject to special grounds of demurrer, in that it set forth in one count four separate and distinct claims; that where a “petition is dismissed for lack of a cause of action and for multifariousness or misjoinder, and is subject to demurrer on the latter ground, this court is not required to rule on the merits of the several claims set forth in the petitionand that, although “courts of equity are loath to dismiss bills for multifariousness, [and] will, if it be reasonably possible, remand the case with leave to amend by striking such of the grounds of complaint as will cure the defect complained of, . . this can not be done where the record is so confused as to make it difficult for this court
2. As in the Whidclon case, since the judgment dismissing this petition is affirmed on the ground alone that it was multifarious and contained a misjoinder, direction is given that the judgment sustaining the demurrers and dismissing the suit be so modified as to rest only upon that ground, “so that the general form of the judgment originally entered will.not prejudice any right of the plaintiff om the merits of his cause.”
Judgment affirmed, with direction.