Summary
In King v. Tilley, 67 Ga. App. 506 (21 S.E.2d 134), this court vacated its former judgment and affirmed the judgment overruling the general demurrer to the petition.
Summary of this case from King v. TilleyOpinion
28908.
DECIDED JULY 3, 1942.
Complaint; from Terrell superior court — Judge Worrill. December 5, 1940.
W. L. Ferguson, R. R. Jones, for plaintiff in error.
Bennet Peacock, Wright Willingham, contra.
1. In accordance with the ruling of the Supreme Court in Tilley v. King, 193 Ga. 602 ( 19 S.E.2d 281), the former judgment of this court ( King v. Tilley, 65 Ga. App. 628, 16 S.E.2d 132), is vacated and the judgment of the trial court is affirmed.
2. The trial court certified in the bill of exceptions that after argument on the general demurrer, "judgment of the court thereon being confined solely to the question of whether the petition set forth a cause of action, judgment was entered up overruling said general demurrer to the petition." It is the opinion of this court that when we vacate our former judgment and sustain the judgment of the lower court overruling the general demurrer we have passed on every question properly presented in this record for our decision. Gabbett v. Atlanta, 137 Ga. 180 (3) ( 73 S.E. 372); Martin v. McAfee, 31 Ga. App. 690 (3) ( 122 S.E. 71).
DECIDED JULY 3, 1942.
In King v. Tilley, supra, this court construed the petition as seeking to recover the reasonable market value of the rent due the plaintiff on the "Lassiter place," in which case the petition in part alleged: "Thirteenth: Petitioner shows that the reasonable market value of the rentals of said property [the Lassiter place] for the year 1939, and the reasonable market value of the crops thereon for said year, was the sum of $1500. Fourteenth: Your petitioner shows that she has made demands upon said executor for the payment to her of the aforesaid sum of $1500 and that the said executor fails and refuses to pay the same to her. Fifteenth: Your petitioner shows that she and her minor children are entitled, by reason of the facts aforesaid, to have and recover of said executor the aforesaid sum of $1500 received by him as the proceeds from said farm for the year 1939. Wherefore, the premises considered, your petitioner prays: 1st: That process issue, requiring the said J. E. King, as executor of the estate of Lewis L. Tilley, to be and appear at the next term of this court to answer this your petitioner's complaint. 2d: That your petitioner have judgment against the said J. E. King, as executor of the estate of Lewis L. Tilley, for the aforesaid sum of $1500."
The defendant filed the following demurrer: "Now comes the defendant, J. E. King, executor of the estate of Lewis L. Tilley, at this the appearance term, and before filing his answer therein, files these his general demurrers thereto, and for grounds thereof, says: (1) Defendant demurs to said petition upon the ground that the allegations therein show no cause of action against this defendant and there is no cause of action set out in said petition. (2) Defendant demurs to said petition upon the ground that said petition sets forth no cause of action, and no facts are set forth sufficient to authorize the recovery by plaintiff of $1500 or any other amount for rent for the year 1939, on lands, which as shown by said petition, were set apart to plaintiff as a year's support by a verdict and decree rendered on December 5th, 1939, after all crops from said lands for said year had matured, had been gathered, and sold. Wherefore, defendant prays that these his grounds of demurrer be inquired of by the court, and that said petition be dismissed." (Italics ours.)
The judge certified in the bill of exceptions as follows: "Be it further remembered, that the defendant, J. E. King, as executor of the estate of Lewis L. Tilley, deceased, filed certain general demurrers to the petition of the plaintiff Mrs. Margaret Wright Tilley, for herself and two minor children, Lewis L. Tilley, III, and Wright Tilley. Be it further remembered, that said cause having come on regularly for a hearing at the regular December term, 1940, thereof, of said court, on the 5th day of December, 1940, before his honor, C. W. Worrill, judge of the superior court of said county; that after argument was had upon the issues raised in said petition of Mrs. Margaret Wright Tilley, for herself and two minor children, Lewis L. Tilley, III, and Wright Tilley, and the general demurrer thereto by the defendant J. E. King, as executor of the estate of Lewis L. Tilley, deceased, the argument and judgment of the court thereon being confined solely to the question of whether the petition set forth a cause of action, judgment was entered up overruling said general demurrer to the petition of Mrs. Margaret Wright Tilley, for herself and two minor children, Lewis L. Tilley, III, and Wright Tilley, which judgment so entered was as follows: `The within demurrer coming on for hearing, during the regular December term, 1940, of the superior court of Terrell County, Georgia, and after argument it is ordered that said demurrer be and the same is overruled. This December 5th, 1940. C. W. Worrill, J. S.C. P. C.'" (Italics ours.)
The plaintiff in error in the demurrer itself, the defendant in error in his brief, and the judge of the lower court treated this case as if the sole question properly raised for decision by the record was whether or not a general demurrer should have been sustained, and this court in King v. Tilley, supra, so treated the case and held: "The widow is not entitled to collect any of the rents for the year 1939. Hence the judge erred in not sustaining the general demurrer." We understood that the general demurrer passed on by the trial court raised the question whether, admitting all the allegations in the petition to be true, the plaintiff is entitled to recover any of the rents actually sought; however, the amount thereof may be measured. City Council of Augusta v. Lamar, 37 Ga. App. 418 (7) ( 140 S.E. 763). We likewise were of the opinion that if the petition did not set out the true measure of rent actually claimed it might have been subject to a special demurrer. There was no such demurrer. Hunter v. Moss, 41 Ga. App. 13, 15 ( 151 S.E. 831); Ford v. Fargason, 120 Ga. 708 (5, 6) ( 48 S.E. 180). This court was of the opinion then that when the case was here before, supra, it passed on all the questions raised by the record which we thought happened to be the sole question of whether or not the general demurrer should have been sustained. The trial court overruled the general demurrer in the language above indicated. This court reversed the trial court and said that the general demurrer should have been sustained.
On certiorari the Supreme Court, two Justices dissenting, reversed the judgment of this court, ruling as follows: "1. Where a year's support for a widow and minor children was duly set apart by appraisers, and the return was approved and recorded by the ordinary, and after an appeal to the superior court upon objections filed to the return of the appraisers a consent verdict and judgment were rendered, allowing as a year's support one of the tracts of land, which had been previously set apart in the ordinary's court, the original judgment in that court as to this tract will not be treated as having been vacated by the appeal; but the title of the widow, with whatever rents, issues, and profits, if any, incident thereto, accrued to and vested in her subject to be divested by the judgment on appeal, from the date of the original judgment in the court of ordinary. 2. The Court of Appeals not having passed upon the question as to what rents, issues, or profits, if any, the widow and minor children would, under the rule stated in the preceding headnote, be entitled to, or whether that question was properly presented by the record, no adjudication on these questions is made." Tilley v. King, supra. In accordance with that ruling of the Supreme Court the decision rendered by this court ( King v. Tilley, supra), is withdrawn and vacated.
In our opinion the only question properly presented by the record is whether a general demurrer should have been sustained. Linder v. Whitehead, 116 Ga. 206 ( 42 S.E. 358). This court and the Supreme Court have held that although a plaintiff may not be entitled to recover the full amount of rent claimed in a petition, this does not authorize the court to sustain a general demurrer if the plaintiff is entitled to recover any amount of rent actually claimed. Felton v. Highlands Hotel Co., 165 Ga. 598, 602 ( 141 S.E. 793). If the petition sets forth the wrong measure of rent claimed, this may be reached by a proper special demurrer; but the wrong measure of rent claimed does not subject the petition to a general demurrer if the allegation of the petition entitles the plaintiff to recover any amount of rent actually claimed. Elwell v. Atlanta Gas-Light Co., 51 Ga. App. 919 (6) ( 181 S.E. 599); Cohn v. Brown, 7 Ga. App. 395 ( 66 S.E. 1038).
The trial court having overruled the general demurrer, and the Supreme Court having likewise decided that the general demurrer should have been overruled, the judgment of the trial court is sustained by this court. We think this court has now, in sustaining the judgment of the trial court overruling the general demurrer to the petition, decided every question properly presented in this record for our decision. Martin v. McAfee, supra.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.