Summary
In Citizens Bank of Hapeville v. Thompson, 99 Ga. App. 466, 467 (108 S.E.2d 750) this court said: "In passing on the question as to whether the petition alleged a valid right of recovery against either of the defendants we have considered the established rules that for a petition not to be subject to a general demurrer depends upon whether the defendant can admit all allegations therein and escape liability (Lancaster v. Monroe, 45 Ga. App. 496, 165 S.E. 302), and a petition is not subject to general demurrer unless it is lifeless.
Summary of this case from Customers Loan Corporation v. JonesOpinion
37613.
DECIDED APRIL 28, 1959.
Complaint. Fulton Superior Court. Before Judge Alverson. September 29, 1958.
Preston L. Holland, for plaintiff in error.
Joseph L. Llop, contra.
Where, as in this case, a petition names a resident of the county in which the suit is instituted and a person residing in another county as joint defendants, and fails to set forth a cause of action as to the resident defendant, such petition is subject to general demurrer as to both defendants.
DECIDED APRIL 28, 1959.
The Citizens Bank of Hapeville instituted an action in the Superior Court of Fulton County, in which Airport Taxi, Inc., a corporation of Fulton County and Dewitt Thompson were named jointly and severally as defendants. The petition alleged in substance that the defendant Dewitt Thompson was negotiating with Mrs. Mildred Fuller for the purchase of certain assets held by her under the trade name, Hapeville Cab Company; the plaintiff held a claim in the amount of $700 against Mrs. Fuller and in consideration for the plaintiff's permitting the sale to proceed without interference the defendant Thompson would deduct $700 of the purchase price and apply it to the plaintiff's claim; the trade was consummated on that basis and $700 was deducted by Thompson from the purchase price of the assets purchased of Mrs. Fuller and was held in trust for the purpose of being applied on the debt due the plaintiff by Mrs. Fuller; the defendant Thompson repudiated the agreement to pay the money on the debt; "shortly thereafter, Airport Taxi, Inc., was chartered" by the State, and organized by the defendant Thompson and others to purchase the assets purchased by Mr. Thompson from Mrs. Fuller; both the defendants took the aforementioned assets with knowledge of the plaintiff's claim; the incorporation of Airport Taxi, Inc., was a subterfuge to conceal the assets purchased of Mrs. Fuller and to prevent her creditors from being able to recover the indebtedness due them, and Mrs. Fuller was by the sale of the assets to the defendant rendered insolvent.
There were other allegations that need not be recited here. The defendant filed a general demurrer to the petition which was sustained and the suit dismissed. The plaintiff excepted to that ruling and brought the case here for review.
The only question for decision is whether the trial court erred in sustaining the general demurrer to the petition.
In passing on the question as to whether the petition alleged a valid right of recovery against either of the defendants we have considered the established rules that for a petition not to be subject to a general demurrer depends upon whether the defendant can admit all allegations therein and escape liability ( Lancaster v. Monroe, 45 Ga. App. 496, 165 S.E. 302), and a petition is not subject to general demurrer unless it is lifeless. Medlock v. Aycock, 16 Ga. App. 813 ( 86 S.E. 455).
The petition failed to set forth facts that would support a recovery against Airport Taxi, Inc., the resident defendant. This is true because the only averments of the petition that tended to show liability on the corporation's part were that it was incorporated to serve as a subterfuge in concealing the assets of Hapeville Cab Company (a trade name of the plaintiff's debtor, Mrs. Fuller) and to prevent the creditors of Mrs. Fuller from recovering indebtedness due them; that the corporation bought of the defendant, Dewitt Thompson, the assets of Mrs. Fuller held by her under the aforesaid trade name, with knowledge that she owed the plaintiff a debt, and that Thompson failed to abide by an agreement to retain a part of the purchase of such assets in trust to be applied upon the debt due the plaintiff by Mrs. Fuller.
Granting that the rather vague allusion to the purpose for which the corporation was organized would be sufficient to show such purpose to be fraudulent, no fraud was alleged to have been committed by the defendant corporation, nor was any act upon its part alleged to be detrimental to the plaintiff's interest. It is not alleged to have removed, or concealed the assets originally owned by Mrs. Fuller or to have done anything that would hinder or delay the plaintiff from subjecting them to execution, levy and sale to satisfy the debt due the plaintiff by Mrs. Fuller which is alleged to have been reduced to a judgment.
Conceding that the petition set forth a cause of action against the defendant, Dewitt Thompson, in other respects, it failed to show that the Superior Court of Fulton County had jurisdiction of the cause against him, because the petition alleged that he lived in Clayton County. The allegation that Airport Taxi, Inc., of Fulton County was jointly liable with the defendant Thompson, did not serve to give the Fulton County Court jurisdiction of his person for the reason that the petition set forth no cause of action against the local corporation. Ruis v. Lotheridge, 149 Ga. 474 (2) ( 100 S.E. 635); Curtis v. College Park Lumber Co., 145 Ga. 601 (4) ( 89 S.E. 680); Brunswick Peninsular Corp. v. Daugharty, 203 Ga. 454, 457 ( 47 S.E.2d 275).
Judgment affirmed. Felton, C. J., and Nichols, J., concur.