Askew v. Newnan Federal Savings & Loan Ass'n
Askew v. Newnan Federal Savings & Loan Ass'n
Opinion of the Court
The main bill of exceptions assigns error on the order of the trial court sustaining certain general and special demurrers of the defendants to plaintiff’s amended petition and dismissing the same. The cross-bill of exceptions assigns error on the order of the court overruling certain demurrers of the defendant, Newnan Federal Savings & Loan Association (hereinafter referred to as “Newnan Federal”) to an amendment to plaintiff’s petition.
In her original petition against Newnan Federal, Mrs. Johnnie B. Askew alleged that in July, 1959, she was the owner of a house and lot and that she executed a deed conveying her property to Newnan Federal to secure an indebtedness of $30,000; that with the express knowledge and concurrence of the defendant, the proceeds of the loan were paid to cover the indebtedness of petitioner’s husband to other named parties; that the conveyance by her to Newnan Federal was null and void under Code § 53-503 in that the conveyance was made to secure the payment of the debts of her husband. Her prayers were that Newnan Federal be enjoined from selling her house and lot at a foreclosure sale and that the loan deed to Newnan Federal be canceled.
In September, 1962, the plaintiff filed an amendment to her original petition, filed in August, 1962, which amendment was allowed by the court subject to objection, in which she struck all of the paragraphs and prayers of her original petition. The amendment in substance named as ■ defendants Newnan Federal and The Manufacturers National Bank of Newnan (hereinafter referred to as “Bank”). She alleged a series of business trans
The defendant, Newnan Federal, filed general and special demurrers to the amended petition. Grounds 1 and 2 of the demurrers were that the amendment attempted to make new parties defendants in the suit and to allege a new and different cause of action. These grounds were overruled and the cross-bill ■ of exceptions assigns error on these rulings. The court sustained other general and special demurrers and dismissed the petition, on which rulings error is assigned by the plaintiff in the main bill of exceptions.
As we view the case, it will be unnecessary to pass on the assignment of error in the main bill of exceptions. In Rogers v. Carter, 177 Ga. 605 (2), supra, it was held: “'When the Supreme Court has before it both a main bill of- exceptions and a cross-bill of exceptions, and the latter presents a question which is controlling upon the case as a whole, it will be disposed of first; and if the judgment therein excepted to is reversed, the writ of error issued upon the former will be dismissed.’ Chidsey v. Brookes, 130 Ga. 218 (60 SE 529, 14 AC 975); Moore v. Kiser, 144 Ga. 460 (2) (87 SE 403); DeLoach v. Georgia Coast & Piedmont Railroad Co., 144 Ga. 678 (3) (87 SE 889); Wood v. Turner, 147 Ga. 93, 95 (92 SE 878); Fite v. Henson, 157 Ga.
In our opinion the court erred in overruling grounds 1 and 2 of the defendant’s demurrers. “Distinct and separate claims of or against different persons shall not be joined in the same action. Where the damage as well as the interest is several, each party injured shall sue separately.” Code § 3-110. “No amendment adding a new and distinct cause of action or new and distinct parties shall be allowed unless expressly provided for by law.” Code § 81-1303. The demurrers properly raised the questions of introducing new parties and causes of action by amendment. See Aycock v. Williams, 185 Ga. 585 (196 SE 54). These rules govern in cases in equity as well as in law. See Roberts v. Atlanta Real Estate Co., 118 Ga. 502 (45 SE 308); and Laken v. Sunbrand Supply Co., 214 Ga. 804 (108 SE2d 323). In George W. Muller Bank Fixture Co. v. Southern Seating &c. Co., 147 Ga. 106 (1, 2) (92 SE 884), it was held: “1. A suit in equity, based on separate and distinct claims against different persons, where there is no common right to be established, will be dismissed on demurrer on the ground of multifariousness. 2. Where a petition is dismissed for such cause, the court will not rule upon the merits of the several claims set forth in the petition.”
From a reading of the allegations of the amendment which are substantially set out above, it is evident that the plaintiff is attempting to assert two separate and distinct causes of action against two separate and distinct parties. Though she seeks to set aside two security deeds involving one tract of property, there is no common interest or nexus between the two alleged rights of cancellation. The two security deeds, involving two different grantors and grantees, grew out of separate transactions in which neither grantee had a common interest but were wholly unrelated one to the other.
The trial court should have sustained grounds 1 and 2 of the defendant’s demurrers and dismissed the amended petition. The petition being subject to dismissal for such cause, the court will not rule on the other rulings of the trial court on the defendant’s demurrers which are complained of in the main bill of excep
Reversed on the cross-bill; main bill dismissed.
Reference
- Full Case Name
- ASKEW v. NEWNAN FEDERAL SAVINGS & LOAN ASSOCIATION NEWNAN FEDERAL SAVINGS & LOAN ASSOCIATION v. ASKEW
- Status
- Published