Opinion
35398.
DECIDED JANUARY 4, 1955.
Trover. Before Judge Guess. DeKalb Superior Court. September 3, 1954.
Phillips, Johnson Williams, Charles A. Williams, for plaintiff in error.
Weekes Candler, contra.
1. Where the defendant has failed to plead specially the defense of estoppel, it is error, requiring the grant of a new trial, for the trial court to submit the issue of estoppel to the jury, even though there be evidence introduced without objection tending to establish the estoppel.
2. In civil actions commenced in the superior court, the trial judge has not discretion to limit the time for argument of the case to one hour to a side. Counsel are entitled to two hours to a side as a matter of right.
3. The assignments of error not likely to recur on a new trial are not considered.
DECIDED JANUARY 4, 1955.
Joel T. Henry, as transferee of Henry Hutchinson, Inc., brought an action of trover against S. B. Slack, in two counts, to recover the value of certain described items of personal property.
In the first count it is alleged that Slack gained possession of certain items of the plaintiff's property by purchase at a sheriff's sale, which was void by reason of the excessiveness of the levy made by a constable under a distress warrant sued out by Slack against Henry Hutchinson, Inc., for past-due rent. The defendant filed his answer of general denial and his demurrers to this count.
In the second count it is alleged that Slack gained possession of certain additional items of the plaintiff's property by purchase at the same sheriff's sale referred to in count 1, and the sale was void as to that particular property since no valid levy had ever been made on that property. The defendant filed his answer of general denial and his demurrers to this count.
The trial court sustained the general demurrers to each of the two counts and dismissed the petition. On review by this court, however, that judgment was reversed. See Henry v. Slack, 86 Ga. App. 198 ( 71 S.E.2d 96), where the material allegations of those two counts are detailed.
Subsequently to that decision of this court, Henry struck the first count of his petition by amendment, and added a third count, in which he struck his name as the plaintiff in the case and substituted that of Henry Hutchinson, Inc., suing for his use. In this count he alleged that he was entitled to the value of all the property purchased by Slack at the sheriff's sale, as the sale was void; and that Slack had obtained no valid title to the property, as the levy was void by reason of the constable's tortious conduct, instigated by the defendant, in ejecting Henry Hutchinson, Inc., from the premises on which the property was located and which it held as tenant of Slack. He also alleged that the purported sale and levy were void, as the attempted seizure of the property located in one of the two buildings in question was not a seizure in the name of the whole of the property in either or both of the two buildings; and he further alleged that the sale and levy were void "because said constable did not seize and reduce the particular said articles to his possession, dominion, or control, in that said constable did not point out, or move, or group said particular articles, or set the same aside in any one place in both or either of said buildings, and did not remove same from said premises, did not make an inventory of same, and did not put in writing or sign of any kind on same, or in or on the outside of said buildings, or elsewhere on said premises to give notice that said articles were under said purported levy, and did not place or leave same in anyone's care or charge, and did not get anyone to agree to keep same for him, and did not remain to keep same in charge himself, or do anything else to give the slightest notice of said purported levy."
The defendant filed no answer to the amendment adding the third count, but interposed general and special demurrers on various grounds. His demurrers were all overruled, and no exception appears to have been taken to that judgment.
Upon the trial of the case the court directed a verdict for the defendant on the second count, and although the plaintiff excepted to that judgment, the exception was abandoned. The jury returned a verdict in favor of the defendant on the third count, the only count with which the jury was concerned. The plaintiff's motion for a new trial, based on the usual general grounds and 23 special grounds, was denied, and the case has been brought again to this court for review.
1. As we have related in the statement of facts, we are here concerned exclusively with the third count of the petition, which was added by amendment and to which there was no answer or plea. While the defendant answered counts one and two of the petition, the plaintiff struck the first count and the trial court directed a verdict for the defendant on the second count. Prior to the act of 1953 (Ga. L. 1953, Nov.-Dec. Sess., pp. 440, 444; Code, Ann. Supp., § 81-103), if a petition contained more than one count, such counts were treated as such completely separate and distinct entities of pleading that the allegations of one count could not even by reference be made a part of another count. Cooper v. Portner Brewing Co., 112 Ga. 894 (3) ( 38 S.E. 91); Reid v. Bryant, 208 Ga. 328 ( 66 S.E.2d 826). A logical extension of that rule would seem to be that separate and distinct answers were required to be made to the various counts, as the Pleading and Practice Act of 1893 (Ga. L. 1893, p. 56; Code § 81-306) abolished the plea of "general issue," and averments in a petition which were not specifically denied were taken as true. Smith v. Holbrook, 99 Ga. 256 ( 25 S.E. 627). And while it is still the rule that all proper unequivocal allegations in a petition which are not denied by proper answer or plea are to be taken as admitted and need not be proved ( Jester v. Bainbridge State Bank, 4 Ga. App. 469, 61 S.E. 926), this rule has been held to be inapplicable to allegations added to a petition by way of amendment, which are to be treated as having been denied generally and must be proved. Hudson v. Hudson, 119 Ga. 637 ( 46 S.E. 874); Brown v. A. B. A. R. Co., 131 Ga. 259 ( 62 S.E. 186); Watson v. Barnes, 125 Ga. 733 ( 54 S.E. 723).
Under the foregoing rules, the defendant's answers to counts one and two cannot be construed as answering count three, but the allegations of count three are to be treated as having been simply denied. Hudson v. Hudson, supra.
"Under a denial of the allegations in the plaintiff's petition, no other defense is admissible except such as disproves the plaintiff's cause of action; all other matters in satisfaction or avoidance must be specially pleaded." Code § 81-307. Under an application of the foregoing statute, the rule has been established by the Supreme Court that, even though there be evidence introduced on the trial of a case, without objection, which tends to establish an estoppel, the defendant may not avail himself of such estoppel unless it has been specially pleaded. Hightower v. Blakely Hardwood Lumber Co., 163 Ga. 776 ( 137 S.E. 22); Carter v. Carter, 207 Ga. 460 ( 62 S.E.2d 171), and citations. There was, as we have said, no answer or plea to count three of the petition; and while there was evidence from which the jury might have inferred the plaintiff's acquiescence in the sale and its consequent estoppel, in the absence of the plea of estoppel the defendant could not avail itself of it, and the trial court erred in charging the jury on the theory of estoppel as complained of in special grounds 4, 16, 17, 18, and 19, and the case must be remanded for a new trial.
2. In special ground 23 error is assigned upon the trial court's limiting, over objection, the time for argument to one hour in violation of Code § 81-1007. This ground of the motion is well taken, as by the provisions of the statute counsel in civil actions originating in the superior court are entitled as a matter of right to two hours on a side in which to argue, and the trial court has not discretion to limit the argument to one hour on a side. Lovett v. Sandersville R. Co., 72 Ga. App. 692 ( 34 S.E.2d 664).
3. Since the case must be remanded for another trial, the remaining assignments of error, which are unlikely to recur on the new trial, are not now considered.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.