116 Ga. App. 779 | Ga. Ct. App. | 1967
Only Headnote 1 needs any elaboration. The petition in the present case alleges that “South Cobb Builders Supply, Inc.” a corporation, is indebted to petitioner in the sum of $890.76 on an account, a copy of which is attached thereto, plus interest in a named sum, and that said sum is past due and unpaid although demand has been made upon defendant. The prayers are for process and judgment for the
One of the special demurrers is for “misjoinder of parties defendant” because the account attached to the petition shows the debtor as “South Cobb Builders Supply” and the suit is brought against “South Cobb Builders Supply, Inc.,” a corporation. The defendant argues this same situation as a reason for, and only reason for, sustaining its general demurrer to the petition. Pretermitting the question of whether the particular subject matter is ground for special demurrer only, or ground for general demurrer (see in this connection Keith v. Darby, 104 Ga. App. 624, 625 (3) (122 SE2d 463), and compare Southern Home Contractors, Inc. v. Royal, 110 Ga. App. 861 (1) (140 SE2d 229)), it is necessary that we decide the question raised. As was stated in Williams v. Appliances, Inc., 91 Ga. App. 608 (4) (86 SE2d 632), an exhibit attached to a petition controls over general allegations, but there is no necessity for saying “the exhibit controls” unless there is some conflict between the two. In the Williams case the petition named “J. D. Robinson, Inc.” as one defendant and two others were also named. The bill of particulars attached showed invoices of the account of “J. D. Robinson, Inc., Winder, Ga.” It was held in that case that, “since the exhibits showed that the items sued for were sold to the defendant J. D. Robinson, Inc. [emphasis supplied] and there is nothing contained in the petition to show why the [other defendants] are liable for such items . . . the petition failed
We are cognizant of the rule that where the name of the plaintiff or of the defendant in a petition is insufficient to show either a natural person, partnership, or corporation the suit is a nullity. Knox v. Greenfield’s Estate, 7 Ga. App. 305 (66 SE 805); Hill v. Fertilizer Works, 14 Ga. App. 106 (1) (80 SE 294); Collins v. Armour Fertilizer Works, 18 Ga. App. 533 (1 a) (89 SE 1054); Barbour v. Albany Lodge No. 24, 73 Ga. 474; Western & A. R. Co. v. Dalton Marble Works, 122 Ga. 774 (1) (50 SE 978). We are here, however, not concerned with the question of total lack of a party defendant, as we have one properly named in the petition. The sole question here is whether the petition with the exhibits shows that the party owing the account as shown by the exhibits is sufficiently alleged to be the same party as is named defendant in the petition. We think that it does, and the petition is neither subject to general demurrer for that reason, nor a special demurrer on the grounds that there is a misjoinder of parties defendant. Whether it would be subject to a special demurrer on other grounds we do not decide. See Bremen Foundry &c. Works v. Boswell, 22 Ga. App. 434, 436 (96 SE 182).
The case of Southern Home Contractors, Inc. v. Royal, 110 Ga. App. 861, supra, relied on by the appellant, was a case wherein three defendants were sued on open account, one of which was named in the petition as “Southern Home Contractors, Inc.” The invoices attached to the petition showed that the items in the account were “sold to Southern Home Contractors, Conyers, Ga.” All of the defendants filed general and special demurrers. This court in Headnote 1 held: “When considered on general demurrer and construed most strongly against the plaintiff, the amended petition thus fails to show that the materials were sold to . . . any of the defendants named therein, and no liability on the part of any of the defendants named is shown,” citing as authority Williams v. Appliances, Inc., 91 Ga. App. 608, supra. As shown above, the Williams case was authority for holding two of the defendants not liable but was not authority for holding “Southern Home Contractors, Inc.”
The trial court did not err in overruling the general and special demurrers of which complaint is made on this appeal.
Judgment affirmed.