184 Ga. 671 | Ga. | 1937
Heirs at law of an intestate brought against another heir an equitable petition alleging that he was appointed by all the heirs as their agent to manage the affairs of a corporation, practically all of the stock of which was owned by the decedent and constituted his entire estate. It is apparent from the petition that no administrator had been appointed, but that, in deference to the informally expressed wishes of the intestate, the agent was named to manage the assets of the corporation for two years, and then liquidate and distribute them according to the law of descent. Fraud, mismanagement, and in effect waste of these assets are alleged, as well as a threatened illegal distribution of remaining assets, to prevent which an injunction is prayed. A
1. Objections to a petition on the grounds of misjoinder or nonjoinder of parties, multifariousness, duplicity, or misjoinder of causes of action, must be raised by special rather than general demurrer. Hartsfield v. Tremont Baptist Church, 163 Ga. 557 (3) (136 S. E. 550); Roberts v. Burnett, 164 Ga. 64 (7) (137 S. E. 773); Ray v. Pitman, 119 Ga. 678 (46 S. E. 849); Riley v. Royal Arcanum, 140 Ga. 178 (1, b) (78 S. E. 803); Ga. R. &c. Co. v. Tice, 124 Ga. 459 (52 S. E. 916, 4 Ann. Cas. 200). The judgment, reciting that “the within demurrer coming” on to be heard, “the general demurrer is overruled,” must be construed as having passed only on grounds which were properly matter of general demurrer; and the failure of the court to pass on the special grounds, which, though embodied in the special and general demurrers, were properly matters for special demurrer only, can not be accounted error in the absence of any exception to the failure to pass on such special grounds.
2. “A general demurrer to a petition will not be sustained if the facts entitle the plaintiff to any of the substantial relief prayed.” Arteaga v. Arteaga, 169 Ga. 595 (4) (151 S. E. 5), and cit.; Johnson v. Key, 173 Ga. 586 (3) (160 S. E. 794); Davis v. Garden Hills Co., 172 Ga. 311 (157 S. E. 472), and cit.; Terry v. Chandler, 172 Ga. 715 (158 S. E. 572); Bazemore v. Savannah Hospital, 171 Ga. 257 (155 S. E. 194).
3. “One person may own all the stock of a corporation, and still such individual shareholder and the corporation would, in law, be two separate and distinct persons.” Waycross Air-Line R. Co. v. Offerman R. Co., 109 Ga. 827, 828 (35 S. E. 275); New
4. Except where the special procedure provided by the Code, § 55-204, in cases involving certain timber and tiarpentining trespasses, it is the statutory rule that equity will not interfere to restrain a trespass, unless the injury is irreparable in damages, or
5. The court properly overruled the general demurrer.
Judgment affirmed.