Opinion
39114.
DECIDED OCTOBER 11, 1961.
Complaint. Fulton Civil Court. Before Judge Wright.
Saul Blau, for plaintiff in error.
Morris Janko, W. E. Slade, contra.
Where a suit is prematurely brought, if the defect appears on the face of the petition objection may be made by specific demurrer or by a plea in abatement, and, if it does not so appear, by a proper plea in abatement, or by motion for nonsuit at the proper time. It is not a matter for a general demurrer which merely asserts that the petition sets out no cause of action.
DECIDED OCTOBER 11, 1961.
Mrs. Rebecca R. Brandwein contracted with one Wesley Greenfield for the making of certain improvements on her home for a fixed price of $4,125. Greenfield then subcontracted the job to H. M. Smith, who proceeded to make the improvements. In a suit brought by Mrs. Brandwein against Greenfield and Smith she alleges that she has paid to Greenfield the full contract price, that he was obligated to pay for all labor and materials used in making the improvements, but that four named suppliers of materials have filed claims for lien against her property and that some of them have instituted suit to foreclose the liens, and that the total of such claims is $2,182.66. She alleges that both Greenfield and Smith have failed and refused to pay for the materials, which they ordered for use in making the improvements. Defendants demurred generally to the petition, and the trial judge sustained the demurrer and dismissed the petition because it "was brought prematurely, since it does not appear on the face of the petition that the plaintiff has suffered any loss by being compelled to pay the liens referred to, or that she has paid such liens off." Plaintiff assigns error upon the sustaining of the demurrer and dismissing of the action.
While it would appear from a reading of the petition that if the plaintiff has a cause of action against the defendants, it had not accrued at the time of the filing of the suit ( Code § 67-2002 (3), as amended; Allen v. Stephens, 102 Ga. 596, 29 S.E. 443); yet, this is a matter that can be invoked only by specific demurrer or by plea in abatement where it appears on the face of the petition, or by plea in abatement if it does not so appear, or by motion for nonsuit at the close of plaintiff's evidence. It is not a matter that will make the petition subject to a general demurrer. Beavers v. LeSueur, 188 Ga. 393, 404 (4) ( 3 S.E.2d 667); Massee v. Stetson, 27 Ga. App. 89 (1) ( 107 S.E. 362). And see Goodrich v. Atlanta Nat. Bldg. c. Assn., 96 Ga. 803 (1) ( 22 S.E. 585); Realty Co. v. Ellis, 4 Ga. App. 402 (2) ( 61 S.E. 832); Cooper v. Ricketson, 14 Ga. App. 63 (2) ( 80 S.E. 217); Nix v. Baxter, 46 Ga. App. 153 (2) ( 167 S.E. 115); Baker v. Tillman, 84 Ga. 401 ( 11 S.E. 355). Consequently, the sustaining of the general demurrer here, which did not point out the prematurity of the action, was error, although in sustaining it the trial judge stated that he did so for the reason that "the suit was brought prematurely . . . and for this reason only, and for no other reason."
Anything that may have been said in Rainbow Realty Corp. v. Porter, 104 Ga. App. 420 ( 121 S.E.2d 791), concerning the procedure applicable to such a situation as is presented here and which is in conflict with the decisions cited supra will not be followed.
Judgment reversed. Carlisle, P. J., and Nichols, J., concur.