Simmons v. Simmons

32 Ga. App. 69 | Ga. Ct. App. | 1924

Broyles, C. J.

(After stating the foregoing facts.) As we view this case it is only necessary to consider the exceptions to the judgment overruling the plaintiff’s special demurrer. It is our judgment that the court erred in refusing to sustain the demurrer and in not striking that portion of defendant’s plea which showed affirmatively that the matters set forth in paragraph 8 to 13 inclusive were not only foreign to the issue, but concerned parties different from those named in the petition. The harmful effect of permitting these transactions to go to the jury and to be read and considered by them is obvious. The transactions show, upon their face, that they relate to a long series of dealings between the plaintiff and a stranger to this case. They were not only calculated to confuse the jury upon the real issue in the case, but to prejudice them against the plaintiffs right to recover. In other words, to use the language employed by Justice Evans in the case of Lampkin v. Garwood, 122 Ga. 410 (50 S. E. 172), “such allegations, in a suit for a breach of contract, not only have no place in legitimate pleading, but are calculated to mislead and prejudice the jury, if read in their hearing or commented on in the argument of the case.-” See also Reese v. Reese, 89 Ga. 645 (3) (15 S. E. 846); Augusta Railway Co. v. Glover, 92 Ga. 132 (2), 142 (2) (18 S. E. 406).

It follows from what has been said that the court erred in overruling the special demurrer; and this error rendered the further proceedings in the case nugatory.

Judgment reversed.

Luke and Bloodworth, JJ., concur.