Hunter v. Potter , 142 Ga. 813 ( 1914 )

Beck, J.

A petition filed by a receiver in an action of trover brought to recover certain described lumber or the value thereof, which showed that the petitioner had been appointed receiver by the superior court in certain proceedings instituted for the purpose of obtaining an equitable partition of certain lands in some ten counties in this State, formerly belonging to the estates of two named parties, and which showed further that the lumber referred to had been cut from a certain lot of land formerly belonging to the estates of the two parties whose lands were to be partitioned, it being alleged also that the defendants entered upon the lot of land “with full knowledge of the fact that said lot of land belonged to the estate” of the two landowners formerly referred to, “and cut, logged, and sawed” timber from said lot of land into the described lumber “for the purpose of converting the same to their own use and in order to deprive the heirs at law of the said estate of the value thereof, and that the petitioner as receiver was expressly authorized by the order of court to bring this action, set forth a cause of action; and the case should not have been dismissed upon a general demurrer. Had special demurrers been filed, the petitioner might well have been compelled to set forth more specifically the terms of the order referred to, under which he claimed authority to institute the action, the date thereof, and the dates upon which the acts of conversion of the lumber in question took place; but no special demurrer was filed to the petition as amended, and the general demurrer should have been overruled, and the court erred in dismissing the case.

Judgment reversed.

All the Justices concur, except Fish, O. J., absent.

Trover. Before Judge Patterson. Fannin superior court. October 21, 1913.

Thomas A. Brown, for plaintiff. O. B. DuPree and George F. Gober, for defendants.