Opinion
19681.
ARGUED APRIL 9, 1957.
DECIDED MAY 13, 1957. REHEARING DENIED JUNE 12, 1957.
Ejectment. Before Judge Lilly. Thomas Superior Court. January 16, 1957.
Forester Calhoun, A. J. Whitehurst, for plaintiff in error.
Jesse J. Gainey, James T. Gainey, contra.
In an ejectment action the petitioner must allege that he is entitled to possession, and that the defendant wrongfully and unlawfully keeps him out of possession, in order to state a cause of action. Where, as here, the pleadings of the petitioner are in conflict as to which party is in possession of the land involved, the court did not err in dismissing the petition on motion of the defendant.
ARGUED APRIL 9, 1957 — DECIDED MAY 13, 1957 — REHEARING DENIED JUNE 12, 1957.
This case is one brought under the common-law or fictitious form of ejectment. The defendant filed his plea to the general issue, but thereafter filed a "special plea," in which he alleges that the title and possession of all the lands set out in the petition are not in question, but that the issue involves merely a land-line dispute; that he is the owner of certain described property, which is all that he is in possession of, and he has settled by agreement his land lines on the south and west, which have been acquiesced in by the abutting owners for more than twenty years; and he prays that the plaintiff be required to answer this "special plea." The court ordered the plaintiff to file a reply within twenty days, and thereafter the plaintiff filed his motion to vacate the above order, demurrers to the plea, and also his reply, which in substance denies the contentions of the defendant, but also states that the defendant is not the owner of or "in possession of any portion of said land that is included in the lands described in the petition," that the plaintiff "is and has been in possession of all the land in dispute," and that he "does verily believe the issue in this case is the title to some 10 acres of land of the plaintiff claimed by the defendant" which is nowhere described except as above. Thereafter, on a written motion to dismiss by the defendant, the court sustained the motion and dismissed the petition. The exception here is only to this order of dismissal.
Needless to say the fictitious forms of pleading in ejectment are still the law in this State, with the defendant admitting the lease and entry of the plaintiff and his ouster by the defendant from the lands involved. Code § 33-111; Code (Ann. Supp.) § 24-3344. But the fictitiousness of the pleadings does not presume to go further and to set up a fictitious issue for the settlement of more purported claims of the adversaries. The purpose of the action is to eject the defendant from possession of the land involved. Consequently, the averments of the plaintiff must allege that he is entitled to possession and the defendant wrongfully or unlawfully keeps him out of possession. 28 C. J. S. 911, § 61; Cochran v. Groover, 156 Ga. 323, 333 ( 118 S.E. 865); Mentone Hotel Realty Co. v. Taylor, 161 Ga. 237, 241 ( 130 S.E. 527); Long v. Godfrey, 198 Ga. 652 ( 32 S.E.2d 306); Kauffman v. Deese, 205 Ga. 841 (3) ( 55 S.E.2d 358).
In this case, after the defendant, in addition to his plea of the general issue, filed a special plea, the court ordered the plaintiff to reply to the so-called "special plea," which is contrary to Code (Ann.) §§ 81-115 and 81-311, since it set up no equitable defenses but merely claimed prior settlement of land-line disputes. While the superior courts of this State may require proper and sufficient pleadings when an equitable claim or defense is presented (Code § 37-908), replication is no longer required, and no special pleadings shall be admitted but every case shall go to the jury to be tried upon "the petition, process, and answer alone." Code (Ann.) §§ 81-115, 81-309, 81-311; McLaren v. Birdsong Sledge, 24 Ga. 265. And there can be no special pleading in the fictitious form of ejectment. Cumming v. Butler, 6 Ga. 88; Day v. Case, 78 Ga. 58. However, the plaintiff did not except here to this order, and although he did file a motion to vacate and set it aside and demurrers to the plea, he answered by showing that he and not the defendant was in possession of all the land described in his petition, which is in conflict with the original petition wherein he alleges that the defendant ousted him and is in possession. He then alleges a claim by the defendant to 10 acres of his land, but fails to properly describe it. Considering the entire pleadings of the plaintiff, his original petition, and the reply, as a whole, and construing the pleadings most strongly against him — as we must on the motion to dismiss, which is the same as a general demurrer to the entire pleadings — he fails to allege a cause of action for the relief sought, since he shows that he is in possession of the land and not the defendant, and we are no longer able to say what lands, if any, are in possession of the defendant. Hence the court did not err in sustaining the motion to dismiss and in dismissing the petition. Heath v. Miller, 197 Ga. 443 ( 29 S.E.2d 416); Rodgers v. Bell, 53 Ga. 94; Doyal v. Russell, 183 Ga. 518 (3) ( 189 S.E. 32); Douglas v. Vourtsanis, 203 Ga. 64 (2), 66 ( 45 S.E.2d 203); Kauffman v. Deese, 205 Ga. 841 (3), supra, and cases cited therein.
Judgment affirmed. All the Justices concur.