Anderson v. Fulton County Home Builders , 147 Ga. 104 ( 1917 )

Evans, P. J.

(After stating the foregoing facts.)

1. The statute requires that demurrers, pleas, and answers shall be disposed of in the order named. Civil Code (1910), § 5630; Smith v. Hornsby, 70 Ga. 552. The demurrers were properly filed, and should have been disposed of before the case was taken up on the' issues made by the pleas. The failure of the defendant to appear would not authorize the dismissal of a demurrer any more than it would authorize a dismissal of his plea. The failure of a defendant to make out his plea is no cause for its dismissal. Andrews v. Andrews, 85 Ga. 276 (11 S. E. 771). The timely filing of a plea setting forth a meritorious defense puts the plaintiff on proof of his case. The filing of a demurrer without protestation is pleading to the merits, and challenges the plaintiff’s cause of action as alleged. The demurrant is not called on to submit proof; and as the demurrer simply invokes the action of the court as to the sufficiency of the pleadings, it should be disposed of before issues of fact are submitted to the jury.

But the failure to pass on the demurrers and traverse of the entry by the sheriff of service on-N. C. Eagsdale was not such an irregularity as will require a new trial for Mrs. Eagsdale. After the prayers for a receiver and the administration of the property conveyed to secure the debt were stricken, the action was solely on notes given by Mrs. Eagsdale. The allegations with respect to the default in their payment, to their maturity, and the liability for attorney’s fees, and the prayer for judgment against Mrs. Eagsdale, sufficiently stated a cause of action on the notes against her. Although an order was taken that N. C. Eagsdale be made a party to the action, no judgment was prayed against him. Subsequently to such order the prayers for receivership and the administration of the land through the medium of a receivership were stricken; and when such relief was abandoned, no judgment could be taken against Eagsdale or his property. By electing to proceed in the existing state of the record, the plaintiff abandoned all relief .against,N C. Eagsdale, and he was eliminated from the case as effectually as if a formal order to that effect had been taken. The verdict was for the plaintiff against Mrs. Eagsdale, for principal, interest, and attorney’s fees, and also that the plaintiff have a special lien against the several parcels of land alleged to have been given to secure the debt. One of these parcels was that contained in a deed from N C. Eagsdale to the plaintiff, alleged to have been given as security for debt. As to this item the court set aside the verdict. So much of the verdict as declares a special lien against the property conveyed by Mrs. Eagsdale to secure her debt does not render the verdict erroneous as against her because of the lack of a prayer'to that effect. The statute does not require the verdict and judgment to set forth a special lien upon the land in cases of this kind, and extraneous evidence is receivable to show the relation of the debt in judgment with the deed given to secure it. Tripod Paint Co. v. Hamilton, 111 Ga. 823 (35 S. E. 696).

2. It is not -sufficient ground for a new trial that counsel for the losing party neglected to either appear or notify the client, where the case was called and disposed of in its regular order.

3. The evidence authorized the verdict against Mrs. Eagsdale, and there was no error in refusing a new trial as to her.

Judgment affirmed.

All the Justices concur.