Opinion
17025.
MARCH 15, 1950. REHEARING DENIED MARCH 27, 1950.
Equitable petition. Before Judge Pharr. Fulton Superior Court. December 2, 1949.
W. C. Lowe, for plaintiff.
J. F. Kemp, J. M. Johnson, John Kirby and Robert W. Cagle, for defendants.
1. The petition as amended by the first three amendments, showing upon its face that the plaintiff and the principal defendant, were dealing at arms' length and not in a confidential relationship, alleged no fraud; and there being no designation of the grantor in the deed sought to be canceled, cancellation thereof would not be authorized; and the allegations as to any debt due by the principal defendant, being negatived by an offer of tender by the plaintiff, set forth no cause of action for money due. Accordingly, the petition set forth no cause of action for any of the relief prayed, and was properly dismissed on general demurrer.
2. Where a hearing on demurrer is set before a judge, in a superior court having more than one judge, and the plaintiff on the same day has another judge to allow an amendment to the petition, but retains possession of the amendment, does not advise the trial judge of its contents, absents himself from the hearing without leave of absence, and does not file it until after the hearing and after a general demurrer to his petition is sustained, the ruling of the trial judge must be confined to the pleadings which are properly before him at that time.
3. Where, under circumstances as stated in the preceding syllabus, an amendment to a petition is filed after a general demurrer is sustained to a petition, it is not error for the trial judge to order the amendment stricken from the record, or to deny a prayer that the petition as amended by such amendment be reconsidered.
Judgment affirmed. All the Justices concur.
No. 17025. MARCH 15, 1950. REHEARING DENIED MARCH 27, 1950.
Irene Cantrell filed a petition against W. T. Cooley, J. W. Sikes, and J. M. George, which was amended three times. As amended it alleged the purchase from Cooley of the equity in certain real estate, various transactions in connection with payments; and, by reason of a dispute in the amount due Cooley, a written contract was executed on July 1, 1948, which fixed the amount due Cooley at $1717. The plaintiff alleged that she did not at that time owe Cooley the $1717, but a lesser amount, and that she had more than paid the lesser amount which she actually owed. She alleged that, at the time she executed the written agreement, Cooley was acting as her confidential agent, and that the agreement was procured by fraud. Whether she ever had a deed from Cooley does not appear. She alleged that, while she was a patient in a hospital, Cooley foreclosed on certain of her realty, which was "sold under foreclosure proceedings" at "sheriff's sale," a part of which was purchased by J. W. Sikes, who was the employer of Cooley and therefore not an innocent purchaser; and that Sikes had instituted a dispossessory warrant against her. By one of her amendments, she offered to pay to Cooley, or into court for him, any money she owed him at the time of the foreclosure, or that she may owe him now. She prayed: that J. M. George, Marshal of the Civil Court of Fulton County, be enjoined from dispossessing her; that Sikes be enjoined from selling the property; that the deed under foreclosure proceedings be set aside; that she be awarded damages; that Cooley be required to produce in court all documents of every kind connected with his dealings with the plaintiff; and for general relief.
General and special demurrers were filed to the amended petition. Upon a hearing thereon on November 15, 1949, before Judge Ralph Pharr, a general demurrer was sustained.
After the general demurrer was sustained, there was much more litigation in the case before Judge Pharr, occasioned by reason of the following facts: On the day the demurrers were set for hearing before Judge Pharr, the attorney for the plaintiff submitted a fourth amendment to Judge Virlyn Moore, who allowed the amendment subject to objections and demurrers, and ordered it filed. The record shows that the plaintiff's attorney had appeared in Judge Pharr's courtroom on the morning the demurrers were set for hearing, sought a continuance, which was denied, and had absented himself therefrom without leave of the court, and did not appear at the hearing. Nor did he present the amendment, which had been allowed by Judge Moore, to Judge Pharr prior to the hearing on the demurrers, but kept it in his possession, and did not file it until after an order was passed sustaining the general demurrer; and Judge Pharr, having no knowledge of the contents of such an amendment, did not consider it in sustaining the general demurrer. Subsequently, on November 21, the defendants, filed a petition alleging that the amendment above referred to had been filed on the same day, but after the order sustaining a general demurrer had been granted, the effect of which would be to confuse the record; and they prayed that the same be stricken from the record. After a rule nisi had been issued, and at a hearing on November 29, an order was granted dismissing the amendment and striking it from the record. Subsequently the plaintiff filed a petition seeking to have the amendment made part of the record, and the case reconsidered in the light of the amendment, and upon a hearing on rule nisi the motion was overruled on December 2.
The exceptions are to the order of November 15, sustaining the general demurrer to the petition as amended by the first three amendments; to the order of November 29, striking the purported fourth amendment from the record; and to the order of December 2, refusing to reinstate the case and consider it in the light of the fourth amendment.