Butler v. McClure , 177 Ga. 552 ( 1933 )

Gilbert, J.

1. A demurrer upon the ground of misjoinder is a special demurrer. Love v. National Liberty Insurance Co., 157 Ga. 259 (2) (121 S. E. 648) ; Linder v. Wimberly, 158 Ga. 285, 289 (123 S. E. 129), et seq.

2. Special demurrers are effective against defects in matter of form, only and not in matter of substance.

3. Defects in form may be cured by amendment. When a defect in form is cured by amendment, the petition will not be dismissed “if there is no other legal difficulty in the way.” See Civil Code (1910), §§ 5681, 5682, 5688; Sims v. Cordele Ice Co., 119 Ga. 597 (3) (46 S. E. 841) ; Georgia R. &c. Co. v. Tice, 124 Ga. 459 (52 S. E. 916, 4 Ann. Cas. 200); Battle v. Warren County Fertilizer Co., 155 Ga. 650, 652 (118 S. E. 362). This question was not involved in Sweat v. Barnhill, 171 Ga. 297 (155 S. E. 18). In that ease there was no amendment to meet the demurrer.

4. The petitioners introduced fi. fas. issued by the tax-collector for State and county taxes, also city tax fi. fa. against Butler, tending to show that the defendant Butler had not paid any of such taxes, including the poll-tax for 1931. The defendant’s evidence set out below, properly construed, is an admission that such taxes have not been paid by him. If there was any error in admitting the original fi. fas. in place of certified copies, such error, in view of the evidence of Butler, was harmless,

5. This court, in a case decided since the argument of this case, has held that the amendment to the constitution proposed by the act approved August 14, 1931 (Ga. L. 1931, p. 102), ratified at the general election in 1932, has the effect of requiring only the payment of a poll-tax to enable one to be a qualified voter under the constitution. In this case the respondent admittedly had not paid his poll-tax. What effect the constitutional amendment would have upon the qualification of the voter in a municipal election where the. charter of the city contains additional requirements for voting need not be decided, since that question is not necessary to a proper decision of the present case. Cooper v. Lewis, 177 Ga. 229 (170 S. E. 68).

6. The evidence demanded the verdict as directed by the court.

Judgment affirmed.

All the Justices concur, except Hill, J., absent because of illness. Mozley & Lcdimer, for plaintiff in error. Blair & Gardner, contra.