Bartow County v. Darnell ( 1957 )

On Motion for Rehearing.

In Jones v. Richmond County, 61 Ga. App. 857, supra, a ground of demurrer that a paragraph “was too vague and indefinite to put the defendant on notice of what the plaintiff contended was a measure of damages,” was sustained. However, it does not appear from the record in that case that the question of the sufficiency of the demurrer to raise the question as to whether the petition set forth the wrong measure of damages was raised or specially passed upon. This court in Hoffman v. Louis L. Battey Post, etc., American Legion, 74 Ga. App. 403 (39 S. E. 2d 889), followed the ancient and well recognized rule that a special demurrer must not only point out the defect in the pleading attacked but must also specially state the reason why such pleading is subject to the criticism made of it. In that case it was held (p. 414): “While under the state of the pleadings in this case it may be that the allegation as to the damages sought by reason of having paid the defendants’ one-half of the budget expenses might have been subject to special demurrer—considered as such, the defendants’ demurrer fails to fulfill this office. A special demurrer, being itself a critic, must be perfect and the party demurring 'must lay, as it were, his finger on the very point,’ otherwise the demurrer will be overruled.”

Authority for the holding is found in Scott v. Central of Ga. Ry. Co., 18 Ga. App. 159 (88 S. E. 995), and in a host of other cases.