Kennedy v. Ayers , 166 Ga. 206 ( 1928 )

Atkinson, J.

If a petition is dismissed on general demurrer which extends to the merits of the ease by charging that the petition fails to allege a cause of action, the judgment of dismissal, unexcepted to, will be conclusive between the parties in a subsequent suit based on the same cause of action. Civil Code (1910), § 4338; Dodson v. Southern Railway Co., 137 Ga. 583 (73 S. E. 834); Fain v. Hughes, 108 Ga. 537 (33 S. E. 1012); Greene v. Central of Georgia Railway Co., 112 Ga. 859 (38 S. E. 360); McDonald v. Georgia Southern & Florida Railway Co., 138 Ga. 15 (74 S. E. 691). But a dismissal of a suit on special demurrer addressed to the form of the petition, which does not extend to the merits of the alleged cause of action, is not a bar to such subsequent suit. Mutual Benefit Life Insurance Co. v. Driskal, 148 Ga. 699 (98 S. E. 265). See also Dolvin v. American Harrow Co., 125 Ga. 699 (54 S. E. 706, 28 L. R. A. (N. S.) 785); Buller v. Tifton, Thomasville & Gulf Railway Co., 121 Ga. 817 (49 S. E. 763). In a former suit between the parties to this case the defendant filed a demurrer to the petition, set forth in four separate paragraphs. The first and fourth paragraphs were not numbered. They were in effect general demurrers to the petition. The other paragraphs were respectively as follows: “2. Mistake is not alleged with sufficient particularity, in that said petition as amended does not show how mistake was made, who made it, and what brought it about. 3. There are no supporting allegations to a charge of fraud, it being merely a conclusion on the part of the pleader.” On the hearing the judge passed an order sustaining “paragraphs two and three” of the demurrer, “with 20 days leave to amend,” and overruled “the remaining paragraphs of said demurrer.” Subsequently a different judge presiding entered an order dismissing the petition, on the ground that the plaintiff failed to amend his petition as allowed in the first order. That dismissal of the petition was on special demurrer not extending to the existence of the alleged cause of action, and the judgment was not a bar to the plaintiff’s subsequent suit against the defendant, relating to the same cause of action.

Where a grantee of land makes a series of purchase-money notes and exécutes to the grantor a deed to secure the notes, which contains a clause accelerating maturity of all the notes at the option of the payee if any of the notes are not paid within a stipulated time, and the parties subsequently change some of the notes by advancing the dates of their maturity, under a parol agreement that the notes so changed should be eliminated from the operation of the accelerating clause in the contract, so that failure to pay them at maturity should not be ground for accelerating maturity of the other notes, the parties will be bound by the subsequent agreement, and failure to pay the changed notes within the stipulated time will not authorize the payee to declare all the notes due and proceed by suit, or by exercise of a power of sale contained in the security deed, for their collection.

At the interlocutory hearing the original petition with all of its exhibits was by consent introduced as evidence. The defendant did not file any demurrer or answer, but introduced without objection the entire record in the former suit between the parties. Under the pleadings and the evidence it was erroneous to refuse the application for interlocutory injunction.

Judgment reversed.

All the Justices concur.