American National Bank & Trust Company v. Davis ( 1961 )

Eberhakdt, Judge.

1. While a bill of sale to secure debt will support an action in trover (Owens v. Bridges, 13 Ga. App. 419, 79 SE 225; Conner v. Farmers & Merchants Bank, 25 Ga. App. 388, 103 SE 474; Piedmont Agricultural Credit Corp. v. Northeastern Banking Co., 51 Ga. App. 571, 181 SE 84; Stanfield v. Crawley, 74 Ga. App. 79, 80, 39 SE2d 88), it is necessary to allege in the petition a default by the maker giving the holder the right of possession, and in the absence of such an allegation the petition is subject to general demurrer and the overruling thereof was error. General Motors Acceptance Corp. v. Jones, 98 Ga. App. 391 (106 SE2d 67).

2. Since we have held the overruling of the general demurrer to have been error, all proceedings thereafter had were nugatory. State Highway Dept. v. Reed, 211 Ga. 197 (4) (84 SE2d 561); Poole v. McEntire, 209 Ga. 659 (3) (75 SE2d 20); Millender v. Looper, 82 Ga. App. 563 (61 SE2d 573); Georgia A. S. & C. Ry. Co. v. A. C. L. R. Co., 79 Ga. App. 837 (2) (54 SE2d 492).

The judgment is reversed on the cross-bill of exceptions in which error is assigned upon the overruling of the general demurrer;

and the main bill is dismissed.

Carlisle, P. J., and Nichols, J., concur.