Opinion
38753.
DECIDED APRIL 25, 1961. REHEARING DENIED MAY 10, 1961.
Summary judgment, etc. Cobb Superior Court. Before Judge Manning.
Jean E. Johnson, Sr., for plaintiff in error.
Claud M. Hicks, G. Robert Howard, contra.
1. A plea of payment which fails to allege with reasonable certainty when, how, and to whom the payment was made is insufficient and, unless amended, should be stricken, upon demurrer, timely filed, specifically pointing out these defects.
2. The trial court erred in striking the defendant's answer in its entirety upon the failure of the defendant to amend paragraph 5 thereof in response to the plaintiff's special demurrer since the defects therein did not relate to the entire answer.
3. The trial court having erred in striking the defendant's answer in its entirety, the subsequent proceedings in the case were rendered nugatory.
DECIDED APRIL 25, 1961 — REHEARING DENIED MAY 10, 1961.
W. L. Tumlin filed his action in Cobb Superior Court against James B. Wilson seeking to set up a materialman's lien against certain described property belonging to the defendant and to foreclose same. The defendant filed his answer in which he admitted certain paragraphs of the plaintiff's petition and denied others. The plaintiff in turn filed a general demurrer to said answer and a special demurrer to paragraph 5 thereof. On July 15, 1960, the plaintiff filed a motion for a summary judgment. On November 3, 1960, the court entered an order overruling the general demurrer to the defendant's answer and sustaining the special demurrer with leave to the defendant to amend his answer within 10 days. On November 15, 1960, no amendment having been filed, the trial court entered an order dismissing the defendant's answer in its entirety. Finally, on November 23, 1960, the trial court entered a summary judgment against the defendant in the sum of $1,104.75 and costs. The defendant has excepted to this court assigning error on the order of the trial court granting the plaintiff's motion for summary judgment and on the antecedent rulings sustaining the demurrer to paragraph 5 of his answer and dismissing his answer in its entirety.
1. Paragraph 5 of the defendant's answer alleged the following: "By way of further answer the defendant shows that he entered into a construction contract with the said Tagenais, for an amount certain, and that all money due said Tagenais Construction, for weeks [sic] has been paid him and that your defendant is not liable to the plaintiff in any amount." The plaintiff demurred specially to this paragraph and moved that it be stricken on the ground that it was insufficient in law to set out a plea of payment in that it did not allege the time, manner and person to whom payment was made. "`A plea of payment which fails to allege with reasonable certainty when, how, and to whom the payment was made is insufficient, and, unless amended, should be stricken, upon demurrer, timely filed, specifically pointing out these defects.' [Citing cases]." Williford v. Phillips, 49 Ga. App. 223 ( 174 S.E. 641). Accordingly, the defendant having failed to amend within the time allowed, the trial court did not err in striking paragraph 5 of the defendant's answer.
2. "Where a special demurrer to a petition is sustained, with leave to amend, and there is a failure to do so, the petition should be dismissed if the delinquency relates to the entire cause of action. But if the demurrer goes only to some particular part of the petition, without which a valid cause of action would still be set forth, the proper judgment is to strike the defective portion and not dismiss the entire action. [Citing cases]." Sellers v. City of Summerville, 88 Ga. App. 109, 114 ( 76 S.E.2d 99). While paragraph 5 of the defendant's answer, which was included in his answer by way of further answer and plea, constituted the defendant's entire affirmative defense to the action, that is prior payment to the contractor in settlement of the claim, paragraphs 2 and 3 of his answer by way of denial denied certain material allegations of the plaintiff's petition and thus created an issue of fact thereto. Accordingly, the trial court erred in striking the answer in its entirety.
3. The trial court having erred in striking the defendant's answer in its entirety, the subsequent proceedings on the motion for summary judgment were rendered nugatory and it is not necessary to consider the assignment of error thereon.
Judgment affirmed in part and reversed in part. Townsend, P. J., Carlisle and Frankum, JJ., concur.