Jones v. Frances Wood Wilson Foundation, Inc.

119 Ga. App. 28 (1969) 165 S.E.2d 882

JONES
v.
FRANCES WOOD WILSON FOUNDATION, INC.

44086.

Court of Appeals of Georgia.

Submitted January 6, 1969. Decided January 14, 1969.

Sam K. Dettelbach, for appellant.

Kilpatrick, Cody, Rogers, McClatchey & Regenstein, R. Lawrence Ashe, Jr., for appellee.

PANNELL, Judge.

1. (a) A suit upon a note secured by a security deed on real estate which indebtedness was allegedly assumed by the defendant grantee in a subsequent warranty deed from the maker of the note is not subject to dismissal for failure to allege the defendant grantee accepted the alleged conveyance. While such an allegation would have been required under the practice prior to the Civil Practice Act (Ga. L. 1966, p. 609, as amended) (Federal Land Bank v. Paschall, 180 Ga. 224 (178 S.E. 659); Federal Land Bank v. Conger, 55 Ga. App. 11 (189 S.E. 567); Interstate Investment Co. v. McCullough, 188 Ga. 206 (3 SE2d 733)), it is not now necessary to allege a complete cause of action and a claim for relief under this Act should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Byrd v. Ford Motor Co., 118 Ga. App. 333 (163 SE2d 327); American Southern Ins. Co. v. Kirkland, 118 Ga. App. 170 (162 SE2d 862). The motion to dismiss on this ground was properly denied.

(b) Nor was the suit dismissable because it was brought in a court without equity jurisdiction. While a suit in equity was formerly required to assert the debt against the party assuming it prior to the Act of 1949 (Ga. L. 1949, p. 455), amending Code § 3-108 (First Nat. Bank v. Rountree, 173 Ga. 117 (1) (159 S.E. 658) and cases cited), since this amendment "the beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on said contract." Pacific Nat. Fire Ins. Co. v. Cummins Diesel, 213 Ga. 4, 7 (96 SE2d 881).

2. The depositions and the defendant's admissions to interrogatories presented on the motion by plaintiff for summary judgment demanded a finding for the plaintiff and against the defendant upon the indebtedness assumed, and there was no error in sustaining the motion and entering judgment therefor.

Judgment affirmed. Felton, C. J., and Quillian, J., concur.