21 S.E.2d 444 | Ga. Ct. App. | 1942
1. If the default was improperly opened the court did not err in discharging the non-resident defendants because the petition did not allege a joint cause of action against the resident and non-resident defendants.
2. If the default was properly opened the judgment discharging the nonresident defendants was proper because the evidence did not support the *851 allegations of the petition, which were held sufficient to allege a joint cause of action on demurrer, unexcepted to, alleging a joint cause of action against the resident and non-resident defendants.
1. It will not be necessary, in arriving at a determination of the one question involved in this case, namely, whether the court had jurisdiction of the defendants Drew, to decide whether the court did or did not err in opening the default judgment, as we have concluded that under the petition and the evidence, if the default was improperly opened, on one hand, and under the evidence, if the default was properly opened, on the other hand, the court did not have jurisdiction of the defendants Drew and there was no error in discharging them in the instant suit. The petition did not set forth a cause of action on which the owners and contractors were jointly liable. There was no joint request for the material, and there was no allegation that it was furnished to all of the defendants jointly. Assuming that the owners' request and the furnishing of the material to the contractors gave rise to an implied promise on the part of the owners to pay therefor, and assuming that the receipt of the material raised an implied promise to pay therefor by the contractors, there are no circumstances or facts alleged which make joint implied promises to pay. So, if the Drews were in default they would have had the right to move to dismiss the action as to them at any time before the verdict. Thigpen v.Bituminous Casualty Corporation,
2. If the default was properly opened the judgment discharging the Drews was correct. The overruling of the demurrer to the petition adjudicated that the petition alleged a joint and several obligation of the defendants, but the evidence failed to measure up even to such allegations as the petition contained. There was no evidence that there was any statement or act on the part of the owners which would give rise to an implied promise to pay for the materials. In fact it showed the mere expression of a desire that the plaintiffs get the business, and excluded premises on which an obligation to pay could be founded. The filing of pleadings in *853
a case of this kind without reservation to attack the jurisdiction of the court does not preclude the raising of such a question at any time during the trial. It can be raised at the moment the evidence shows lack of jurisdiction of the non-resident. Such a question does not have to be raised at the first term as in cases where the jurisdiction of the non-resident does not depend on the merits of the case. Central Railway Co.
v. Brown,
There was no error in discharging the non-resident defendants.
Judgment affirmed. Stephens, P. J., and Sutton, J., concur.