Summary
In McLean v. Johnson, 204 Ga. 862, 864-865 (51 S.E.2d 836), it appears that several defendants demurred generally to the petition and the court sustained the demurrer but allowed five days in which to amend.
Summary of this case from Clark v. S. F. C. Acceptance Corp.Opinion
16506.
FEBRUARY 17, 1949.
Injunction, etc. Before Judge Moore. Fulton Superior Court. November 8, 1948.
Dodgen Irwin for plaintiffs in error.
Hudson LeCraw, contra.
1. Where the court sustained a general demurrer with permission to amend within five days by making as a party defendant a corporation whose charter the petitioners sought to cancel, the effect of the filing and allowance of the required amendment was to leave the general demurrer overruled, and the judgment was not final. Ramey v. O'Byrne, 121 Ga. 516, 519 (3) ( 49 S.E. 595). Since the general demurrer was in law ineffective to raise the question of nonjoinder of a party ( Burkhalter v. Peoples Bank, 175 Ga. 744 (3), 165 S.E. 749), and should have been overruled by the court in the first instance, but the same result was reached by the allowance of the amendment, the assignment of error that the court erred in its ruling on the general demurrer, in granting the right to amend within five days by adding a party defendant, is without merit.
( a) The contention that the court erred in failing to sustain the original demurrer unconditionally, on the ground that the petition was not amendable because there was nothing to amend by, is without merit. The petition named as defendants numerous persons who, it was alleged, were seeking to incorporate and use substantially the same corporate name as that employed by the petitioners in an unincorporated society or club. Atlanta Club of the Deaf, of which they were members in good standing, and without notice as required by the law (Code, § 22-202) of their intention to apply for a charter in the name of "Atlanta Club for the Deaf, Incorporated," and that unless enjoined they would confiscate money and other assets of the unincorporated club and transfer all to the corporation, thus setting forth a cause of action for equitable relief against the individual defendants. Richter v. Richter, 203 Ga. 383 ( 47 S.E.2d 53).
2. The corporation, having demurred to the merits of the petition after it was amended making it a party, waived its right to object to its being made a party defendant, and the assignment of error in this respect is without merit.
3. The petition as amended retained all the allegations and prayers of the original petition and named as an additional defendant Atlanta Club for the Deaf, Incorporated, whose charter the petitioners sought to cancel, while also seeking to enjoin the individual defendants from committing the unlawful acts alleged in the petition. The petition as amended set forth a cause of action against the corporation, as well as the individual defendants, and the court did not err in overruling the general demurrer thereto. Code, § 22-202; M. E. Church South v. Decell, 60 Ga. App. 843 ( 5 S.E.2d 66); Richter v. Richter, supra.
Judgment affirmed. All the Justices concur.
No. 16506. FEBRUARY 17, 1949.
STATEMENT OF FACTS BY DUCKWORTH, CHIEF JUSTICE.
Ross A. Johnson Sr. and thirty-four others filed in the Superior Court of Fulton County, Georgia, a petition against Leonard S. McLean and twenty-nine others, alleging substantially the following: The petitioners are members, in good standing with dues paid, of an unincorporated society or club, organized on September 23, 1944, and known as "Atlanta Club of the Deaf." All the petitioners and members have an interest in the club, which had approximately $1100, 100 chairs, ice boxes, stoves, tables, cash registers, dishes, etc. in use by the club. The petitioner, Fred Harden, is vice-president of the club, and the petitioner, Mrs. Fred Harden, is secretary of the club. One of the defendants, Leonard S. McLean, is president, and another defendant, Esteben D. Ward, is treasurer of the club. These two last-named persons and the other defendants made application for a charter under the name of "Atlanta Club for the Deaf, Incorporated," a notice of the said application appearing in the Fulton County Daily Report, a newspaper, under date of May 24, 1948, a copy of which was attached to the petition and made a part thereof. It is the purpose and intention of the defendants to seize and apply the money and all property and assets of the club of the petitioners to their own use and confiscate and take away the same from the members of the said club; and unless restrained from so doing, the defendants will seize such money and assets and transfer the same to the alleged corporation, take the name of the petitioners' club away from its members, and illegally deprive them of the benefits of the said money and assets and their use. The petitioners object to the incorporation of the name of their club and its use by the defendants or any other person, and have not authorized its appropriation. The defendants have not given to the Atlanta Club of the Deaf the fifteen days' notice as required by law, and the petitioners were not given any opportunity to object to the granting of the charter. The prayers were: that the order granting the charter be set aside, canceled, and decreed to be null and void; that the defendant, Leonard S. McLean, as president, be restrained and enjoined from using the name "Atlanta Club of the Deaf or any part thereof in an effort to incorporate, and from moving or controlling in any way the club hall of the Atlanta Club of the Deaf at 105 1/2 Broad Street, Atlanta, Georgia; that the defendant, Esteben D. Ward, as treasurer, be temporarily and permanently enjoined from withdrawing any of the funds of the Atlanta Club of the Deaf from the Bank of Georgia; that upon the trial the said Leonard S. McLean, as president, be temporarily and permanently restrained and enjoined from acting as president, and the position of president of the club be declared vacant; that the position of treasurer of the club be declared vacant, and the defendant, Esteben D. Ward, be required to account to the Atlanta Club of the Deaf for all of the funds and property coming into his hands as such treasurer; that all of the defendants be temporarily and permanently restrained and enjoined from using the name, "Atlanta Club of the Deaf," or any word or part thereof, as a name of the said corporation; and for service and process.
The defendants demurred generally to the petition on the ground that no cause of action at law or in equity was set forth against the defendants. The court sustained the demurrer, but allowed the petitioners five days in which to amend the prayer which sought to have the charter of "Atlanta Club for the Deaf, Incorporated," set aside and canceled. By amendment, allowed by the court, the petitioners alleged: that at the time of filing their original petition the period for publication of the notice of the application had not expired, although the court had signed an order granting the said charter; that since the filing of the suit the period of time for publishing the advertisement had elapsed; that under all the circumstances the Atlanta Club for the Deaf, Incorporated, is now considered to be a necessary party, but such corporation has no legal officers upon whom the amendment may be served, or any officers or agents, so far as the petitioners know, upon whom service may be had; and it was prayed that Atlanta Club for the Deaf, Incorporated, be made a party defendant. The said corporation was by the court made a party defendant. All the defendants demurred to the petition as amended on the ground that it did not set forth a cause of action either at law or in equity. The court overruled the demurrer.
By direct bill of exceptions, eighteen days after the first order of the court, the defendants assign error on, (1) the judgment sustaining the demurrer but allowing the petitioners five days in which to amend; (2) the order making the corporation, Atlanta Club for the Deaf, Incorporated, a party defendant; and (3) the judgment overruling the demurrer to the petition as amended.