National Bank v. Evans , 149 Ga. 67 ( 1919 )

George, J.

1. In an action on the ease for conspiracy, the conspiracy is not the gravamen of the charge, but’ may be both pleaded and proved as aggravating the wrong of which the plaintiff complains, and enabling him to recover in one action against all as joint tort-feasors. Woodruff v. Hughes, 2 Ga. App. 361 (58 S. E. 551); Van Horn v. Van Horn, 56 N. J. L. 318 (28 Atl. 669), s. c. 52 N. J. L. 284 (20 Atl. 485, 10 L. R. A. 184); Parker v. Huntington, 2 Gray (Mass.), 124; 8 Cyc. 673.

2. Accordingly, a petition which alleged that three named persons, at a time stated, “entered into a conspiracy for the purpose” of wrongfully withholding from the plaintiff certain commercial securities “and for the purpose of converting them [the securities] to the joint use and benefit of the said” named persons; that the said defendants “in furtherance of said conspiracy” did withhold the described securities from the plaintiff, and on a day named did convert the same “to their own joint use and benefit,” to the loss and injury of the plaintiff in a sum alleged as the actual value of the securities on the date of their conversion, sufficiently set forth a conspiracy as against a general demurrer. Nor was such petition subject to special demurrer “which attacked it because of the alleged lack of sufficient facts or overt acts to support a charge of conspiracy between the three defendants.”

■(a) So far as the conspiracy is concerned, no further specification is required than the general terms in which it is pleaded in the declaration; and this is tfue although the jurisdiction of the court to render judgment against one or more of the defendants depends upon allegations and proof of conspiracy.

All the Justices concur.

“1. Was the alleged conspiracy sufficiently set forth to make the petition good as against a general demurrer? In this connection the attention of the court is called to the repeated rulings of the Supreme Court, that where a petition is good in substance it should-not be dismissed on general demurrer for defects, which could be cured by amendment; such defects should be attacked by special demurrer. 56 Ga. 390; 79 Ga. 164 (2); 89 Ga. 601 (2); 89 Ga. 646 (3); 91 Ga. 217.

“2. If the petition was good as against the general grounds of the demurrer, was it subject to the special grounds which attacked it because of the alleged lack of sufficient facts or overt acts to support the charge of conspiracy between the three defendants? See, in this connection, Woodruff v. .Hughes, 2 Ga. App. 361; 5 Stand. Ene. Proc. 323; 12 Corpus Juris, 629, § 215; 4 Enc. PI. & Pr. 738; Van Horn v. Van Horn (N. J. Sup.), 10 L. H. A. 184; Davis v. Johnson 101 Eed. 952.”

Garrard & Gazan, E. S. Elliott, E. K. Overstreet, and M. R. Lufburrow, for plaintiffs in error. T. J. Evans, contra.