Pardue Medicine Co. Inc. v. Pardue , 194 Ga. 516 ( 1942 )

1. Since passage of the uniform procedure act, where a suit is filed in a superior court, which has general jurisdiction both in law and in equity, the petition is not subject to general demurrer on the ground that the plaintiff has an adequate remedy at law, if it states a cause of action for either legal or equitable relief. Code, §§ 37-901, 37-907; Teasley v. Bradley, 110 Ga. 497 (4) (35 S.E. 782, 78 Am. St. Rep. 113); Artega v. Artega, 169 Ga. 595 (2 c) (151 S.E. 5); Lowery Lock Co. v. Wright, 154 Ga. 867 (1 b) (115 S.E. 801); Grimmett v. Barnwell, 184 Ga. 461, 463 (192 S.E. 191).

2. Nor is the petition in such case otherwise subject to a general demurrer assailing it as a whole, if it is good in substance for any part of the relief sought, either legal or equitable. Blaylock v. Hackel, 164 Ga. 257 (5) (138 S.E. 323); Calbeck v. Herrington, 169 Ga. 869 (152 S.E. 53).

3. Where property owned by one at the time of his death is set apart to his minor children as a year's support, the title thereto vests in such children share and share alike, and a child's arrival at majority does not divest his or her legal interest. Code, § 113-1006; Walden v. Walden, 191 Ga. 182 (12 S.E.2d 345). It follows that where property, after being so set apart to minor children, is taken and converted by other persons, a suit to recover the same or its value should be brought in the name of such children; and this is true regardless of whether they sue by guardian or next friend, or without representation. Code, § 3-109; Oliver v. McDuffie, 28 Ga. 522; Jack v. Davis, 29 Ga. 219 (2); Johnson v. James, 41 Ga. 597; Wood v. Haines, 72 Ga. 189; 25 Am. Jur. 93, 95, §§ 149, 152; 28 C. J. 1259, § 432.

4. The office of guardian of a minor expires by operation of law on arrival of the minor at majority, and no order severing the relationship is necessary. Lasseter v. Simpson, 78 Ga. 61 (3 S.E. 243); Phillips v. Taber, 83 Ga. 565 (7) (10 S.E. 270); Harvey v. Atkinson, 100 Ga. 178 (28 S.E. 31); Georgia Railroad Bank Trust Co. v. Liberty National Bank Trust Co., 180 Ga. 4 (2) (177 S.E. 803). Nor is a suit in the name of a minor by another person as next friend subject to general demurrer because it was not brought by a guardian, even though it may appear that the minor had a guardian at the time the suit was filed. Code, §§ 3-115, 37-1003, 49-111; Sanders v. Hinton, 171 Ga. 702 (156 S.E. 812); Dent v. Merriam, 113 Ga. 83 (38 S.E. 334).

(a) Accordingly, the instant action as instituted in the names of two children to whom property had been set apart as a year's support, one suing in her own name without representation after arrival at majority, and the other who was still a minor suing by the former as next friend, was not subject to attack as a whole on the grounds that the right of action, if any, was in the guardian and not in the wards, and that the petition failed to allege that the guardian refused to sue. May v. Jones, 88 Ga. 308 (4) (14 S.E. 552, 15 L.R.A. 637, 30 Am. St. Rep. 154); Howard v. Edwards, 89 Ga. 367 (2) (15 S.E. 480); Carson v. Fears, 91 Ga. 482 (3) (17 S.E. 342); George v. Georgia Power Co., 43 Ga. App. 596 (5) (159 S.E. 756).

(b) Whether or not the petition might have been subject to a special demurrer attacking it separately as to the minor, no such demurrer was filed. See LaGrange Mills v. Keener, 121 Ga. 429 (3) (49 S.E. 300); Stanley v. Stanley, 123 Ga. 122 (51 S.E. 287).

5. Under the preceding rulings, the allegations of the amended petition were sufficient to state a cause for recovery of personality or its value, as against the demurring defendants. Whether it may have shown a cause for other relief, either legal or equitable, need not be determined, no particular allegation or prayer having been challenged. Hartsfield Co. v. Willis, 192 Ga. 219 (2) (14 S.E.2d 735).

6. Nor was the petition defective for misjoinder or nonjoinder of plaintiffs or defendants, as contended in any of the grounds of special demurrer as taken. In connection with these grounds of demurrer, see Lowery Lock Co. v. Wright, 154 Ga. 867 (3), 872 (supra).

7. The court did not err in overruling the demurrer on all grounds.

Judgment affirmed. All the Justicesconcur.

No. 14172. SEPTEMBER 22, 1942. The plaintiffs were Rebecca Ray Pardue and Daniel Gibson Pardue Jr., a minor, suing by Rebecca Ray Pardue as next friend. The defendants were Pardue Medicine Company Inc., Dr. L. R. Arnall, Marvin G. Russell, Miss Jimmie Charles Goodrum individually and as guardian, and AEtna Casualty and Surety Company as surety on the guardian's bond. The allegations were substantially as follows: Petitioners are the children of Daniel Gibson Pardue Sr., who departed this life on March 18, 1937. The petitioners were then minors. Since that date Rebecca Ray Pardue has reached twenty-one years of age, and Daniel Gibson Pardue Jr. twenty years and nine months. Miss Jimmie Charles Goodrum, the maternal aunt of petitioners, was appointed administratrix of the estate of Daniel Gibson Pardue Sr., and on August 13, 1938, was appointed guardian of petitioners, by the court of ordinary of Fulton County. On September 16, 1938, the ordinary passed an order setting apart as a year's support for petitioners certain assets of the estate of Daniel Gibson Pardue Sr., consisting of a described stock of merchandise, drugs and accessories, including show-cases and display counters, "located at place of business of Pardue Medicine Company, 331 Peters Street S.W., Atlanta, Fulton County, Georgia, $500;" also certain described notes "representing purchase-price of 641 Collier Road, Atlanta, Georgia, $491.47, cash $55.89." In compliance with her appointment, the guardian gave bond in the sum of $1000 with AEtna Casualty and Surety Company as surety. The guardian is a non-resident of Georgia. On January 11, 1938, without any order of court or any legal authority, the aforesaid assets of Pardue Medicine Company were taken possession of by the Pardue Medicine Company Inc. and Marvin G. Russell. Said two defendants have since that date had possession of said business, receiving and disposing of the proceeds derived therefrom, without accounting to petitioners, the true owners thereof, or to Miss Jimmie Charles Goodrum, guardian.

At present the defendant L. R. Arnall is in actual possession of said Pardue Medicine Company, and, acting in conjunction with and under the directions of Marvin G. Russell, interferes with your petitioners' rightful possession of said property, and refuses to surrender possession thereof. Marvin G. Russell has had complete control of said business since August 15, 1939, and has withdrawn certain funds, the exact amount of which petitioners do not know, but allege it to be a minimum of $30 per month, and has likewise had on the pay-roll of said company his private secretary, who performs no service for said company, the exact amount of said pay being unknown to petitioners. The defendants jointly and severally have complete possession, custody, and control of all books, papers, and records of said business, and refuse to surrender them to petitioners, the true owners, or to permit them to examine the same. Petitioners have no adequate remedy at law, because they are entitled to an accounting from each of the defendants, and are entitled to the aid of a court of equity for the purpose of restraining and enjoining the defendants from interfering with them in taking possession of and operating said business. The plaintiffs prayed for accounting, injunction, and general relief.

Arnall, Russell, and the Pardue Medicine Company demurred on grounds as follows: (1) Neither the petition as a whole nor any of its parts or paragraphs sets out any cause of action against these defendants, or any of them. (2) Plaintiffs have a complete and adequate remedy at law. The right of action, if any, is against the guardian, if she or her agent is guilty of misfeasance or malfeasance. (3) It appears from the petition that the ordinary of Fulton County has appointed a guardian, and the right to institute the present action, if any, is in the guardian, and not in the wards. (4) It appears from the petition that the administratrix of the estate of Daniel Gibson Pardue Sr. is at the same time the guardian of the plaintiffs, who are heirs at law of the deceased, and she is a necessary and interested party as administratrix or guardian, either plaintiff or defendant; and not having been made such, the petition should be dismissed for nonjoinder of parties. [The guardian was made a party defendant by amendment after the demurrer was filed.] (5) It appears on the face of the petition that there is a misjoinder of parties plaintiff. There is a misjoinder of parties defendant, a nonjoinder of parties plaintiff, and a non-joinder of parties defendant. (6) In law, there is a presumption that the defendants are in the rightful possession of the property sued for, with the consent and by the direction of the guardian; and the petition fails to allege any fact that would warrant the court to draw any other conclusion. (7) The defendants, in law, are accountable only to the guardian, and not to the plaintiffs. (8) The petition fails to allege that the guardian refuses to bring suit against these defendants. (9) The petition fails to allege any mismanagement on the part of the guardian, or that the estate is being squandered or wasted, to the injury of the plaintiffs, or that the guardian has failed in any way to faithfully perform her duties as guardian. (10) The petition fails to allege that all or any of the parties defendant are insolvent and unable to respond in damages.

The demurrer was overruled, and the defendants excepted.