Pearson v. Chamblee

Gilbert, J.

1. The petition was subject to the ground of demurrer pointing out that there was a misjoinder of parties and of causes of action.

(а) Of the plaintiffs named in the petition only one, T. J. Pearson, is alleged to have been a party to the contract with the alleged creditors, which is made the basis of the suit.

(б) There seems to be no connection between the alleged cause of action on the contract and the allegations and prayers seeking to remove defendant Chamblee as administrator on the estate of Mrs. Dora Pearson.

(c) No connection appears between the cause of action on.the contract between T. J. Pearson and the creditors on the one hand, and the attempt to set up a cause of action as between the administrator of Mrs. Dora Pearson, deceased (also made a defendant), and the defendant Bank of Menlo.

2. The petition was subject to demurrer on the ground that it contains inconsistent causes of action and seeks inconsistent remedies: (a) it seeks specific performance of a contract made with the creditors, including J. 0. Chamblee individually, J. C. Chamblee as administrator, and J. C. Chamblee as trustee; (b) it seeks a judgment against other defendants in favor of . J. C. Chamblee, administrator of the estate of Mrs. Pearson; (c) and at the same time seeks to remove Chamblee as administrator of the estate; (d) and at the same time seeks to have J. G. Chamblee, as administrator, sell the property and distribute the assets; (e) it seeks a judgment denying Chamblee the fees allowed as administrator of the estate of Mrs. Pearson; (f) it seeks collaterally to attack the judgment of the court of ordinary appointing Chamblee as administrator, and to have that judgment canceled.

No. 4536. April 18, 1925.

3. The petitioners having failed to meet any of these grounds of demurrer by amendment, the court did not err in sustaining the demurrers.

4. The petition, as it appears, fails to set out plainly and specifically a cause of action, and therefore the court did not err in sustaining the demurrers and in dismissing the action.

■Judgment affirmed.

.All the Justices concur, except Russell, O. J., who did not participate. Wesley Shropshire and Denny & Wright, for plaintiffs. Maddox, Matthews & Owens, for defendants.