McKellar v. Childs ( 1958 )

Quillian, Judge.

1. The decision of this court on the former appearance of the case adjudicated the sufficiency of the answer as against a ground of demurrer then urged. The question of whether the answer was open to demurrer because it sought to set off a claim ex delicto against a cause ex contractu was not before the court and was not decided.

Decided February 19, 1958. John Henry Poole, for plaintiff in error. Reinhardt •& Ireland, Boh Reinhardt, D. C. Ireland, contra.

2. A cross-action is not valid which attempts to plead an ex delicto claim against an action ex contractu unless it is alleged that the plaintiff is either insolvent or a nonresident. There being no such allegation in the cross-bill filed by the defendant in this case the judge did not err in sustaining the motion to dismiss the cross-action. Cornett v. Ault, 124 Ga. 944, 947 (53 S. E. 460); McLendon Bros. v. Finch, 2 Ga. App. 421 (58 S. E. 690); Geer v. Cowart, 5 Ga. App. 251 (62 S. E. 1054).

Judgment affirmed.

Felton, C. J., and Nichols, J., concur.