Darley v. Ehrlich & Co.

Bell, J.

1. The right to maintain the present trover action was not negatived by the allegation that we plaintiff was suing for the use of another. “His petition” having alleged that the property sued for was “the property of petitioner,” the reference to a usee was mere surplusage, to be ignored. See Mitchell v. Georgia & Alabama Ry., 111 Ga. 760 (2) (36 S. E. 971, 51 L. R. A. 622); Norcross Butter &c. Co. v. Summerour, 114 Ga. 156 (3) (39 S. E. 870); McEachern v. Edmondson, 122 Ga. 80 (49 S. E. 798); Louisville & Nashville R. Co. v. Ramsay, 137 Ga. 573 (2) (73 S. E. 847, Ann. Cas. 1913B, 108); Louisville & Nashville R. Co. v. Morse, 143 Ga. 110 (2) (84 S. E. 428); Sullivan v. Curling, 149 Ga. 96 (99 S. E. 533, 5 Am. L. Rep. 124).

2. The averments as to past transactions, as contained in paragraph 2, unlike the fatal allegation in Herring Safe Co. v. Baker County, 77 Ga. 535 (3 S. E. 521), apparently were made for the purpose of identification and description, and, in view of the petition as a whole, did not, upon general demurrer or a motion to dismiss, snow affirmatively as a matter of law that the plaintiff did not have title, as alleged, at the time of the suit. Phelan v. Vestner, 125 Ga. 825 (54 S. E. 697).

Decided March 13, 1924. H. II. Merry, Harrell & Gusler, for plaintiff. J. G. Hale, for defendants.

3. The petition set forth a cause of action, and the court erred in sustaining the oral motion to dismiss it. Harrell v. Attaway, 18 Ga. App. 269 (1) (89 S. E. 347).

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.