Opinion
41823.
ARGUED FEBRUARY 8, 1966.
DECIDED MARCH 2, 1966. REHEARING DENIED MARCH 15, 1966.
Action on notes. Clayton Civil and Criminal Court. Before Judge Foster.
Huie, Etheridge Harland, Harry L. Cashin, Jr., for appellant.
Kemp Watson, John L. Watson, Jr., for appellee.
1. A special demurrer must point out the defect in the pleading attacked, and must also point out why it is subject to such attack, otherwise the demurrer itself is defective.
2. Where a general demurrer to an answer is overruled and such judgment stands unreversed a defendant is entitled to prove his alleged defense, and if proved a finding in his favor is authorized.
ARGUED FEBRUARY 8, 1966 — DECIDED MARCH 2, 1966 — REHEARING DENIED MARCH 15, 1966.
A. A. Greene sued Gordon E. Smith in the Civil and Criminal Court of Clayton County on two promissory notes. The petition was in 2 counts and each of the counts refers to a separate note. In his answer the defendant admitted the jurisdictional allegations of the plaintiff's petition, denied the remainder of the allegations, and for further answer to each count of the petition alleged that the defendant sold to the plaintiff debenture bonds described in the answer, that at the time of such sales the plaintiff was an officer, director and stockholder of the company issuing such debentures and could not own such debentures in his own name, that the plaintiff desired to earn the interest on such debentures and desired to leave them in the name of the defendant and hold notes, copies being attached to the plaintiff's petition as exhibits, to insure the payment of interest and to further insure that the defendant would not dispose of said debentures, and that the plaintiff had collected all interest due on said debentures since the dates of the sales.
The plaintiff filed general and special demurrers to the defendant's answer. Such demurrers were overruled and upon the trial of the case before the court without the intervention of a jury a judgment was rendered for the defendant on each count. On appeal the plaintiff enumerates as error the final judgment for the defendant and the judgment overruling his special demurrers to the defendant's answer.
1. "It has been held many times that a demurrer, `being a critic, must itself be free from imperfection.' This is particularly true of a special demurrer, which must point out clearly and specifically the alleged imperfection in the pleading attacked by it. It `must lay its finger, as it were, upon the very point.'" Martin v. Gurley, 74 Ga. App. 642, 643 ( 40 S.E.2d 787). "`(A) special demurrer must not only point out the defect in the pleading attacked but also must specifically state the reason why such pleading is subject to the criticism made of it.' Bartow County v. Darnell, 95 Ga. App. 193, 195 ( 97 S.E.2d 610)." Hughes v. Jackson, 109 Ga. App. 804, 807 ( 137 S.E.2d 487). The plaintiff's special demurrers attacked paragraphs of the defendant's answer as being "impertinent, immaterial, irrelevant and mere surplusage" but failed to point out any reason why such paragraphs were subject to such complaint. Therefore, the trial court did not err in overruling such demurrers.
2. The plaintiff does not complain of the judgment overruling his general demurrer to the answer, and thus, even assuming without deciding that the defendant failed to set forth an adequate defense to the plaintiff's petition, it is the law of the case that a finding for the defendant would be authorized if the allegations of his alleged defense were supported by competent evidence. See in this connection Cloud v. Stewart, 92 Ga. App. 247 ( 88 S.E.2d 323); Atlantic C. L. R. Co. v. Clements, 92 Ga. App. 451, 457 ( 88 S.E.2d 809), and citations.
The plaintiff testified that he was a stockholder, officer and director of the corporation that had issued the debentures referred to in the defendant's answer, that he owned other debentures in such corporation, that such corporation had been taken over by another corporation and under an arrangement with such corporation the interest on all outstanding debentures was being paid except those owned by the plaintiff. He also testified that the debentures were in his custody. Other evidence was adduced to show that a notation had been made on the company records that the plaintiff owned such debentures, and the defendant testified to the facts alleged in his answer. Accordingly, the judgment for the defendant was authorized by the evidence.
Judgment affirmed. Hall and Deen, JJ., concur.