Crowley v. Calhoun et al.

Supreme Court of Georgia1925-11-20No. No. 4911

161 Ga. 354

Summary · law.co

Holding. The judgment sustaining the general demurrer and dismissing the petition was erroneous. The court reversed the dismissal and held that when evaluating the sufficiency of a petition on demurrer, only the allegations contained in the petition itself may be considered, not extraneous facts from answers or other sources.

Crowley filed an equitable petition seeking to cancel certain writings that allegedly clouded his title to property. The lower court dismissed the petition by sustaining a general demurrer filed by the defendants. On appeal, Crowley challenged this dismissal, and the court examined whether the petition stated a valid cause of action for equitable relief. The court determined that the petition's allegations, if proven true, would entitle Crowley to relief through cancellation of the problematic documents, and that equity jurisdiction existed to provide such a remedy.

The defendants argued that the petition was deficient because it failed to join the Atlanta Banking & Savings Company as a party and because certain factual details about a bank debt were unclear or missing. However, the court rejected these arguments, holding that the question of whether the Atlanta Banking & Savings Company was a necessary party should have been raised by special demurrer rather than general demurrer, and therefore could not support the dismissal. The court also refused to consider information from the defendants' answers or other sources outside the petition itself when evaluating whether the petition adequately stated a cause of action.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether the petition stated a valid cause of action for cancellation of writings clouding title
Whether the failure to join a third party could be raised by general demurrer
Whether facts outside the petition could be considered in evaluating the sufficiency of a petition on demurrer

Procedural posture

The lower court sustained a general demurrer and dismissed Crowley's equitable petition, and Crowley appealed the resulting judgment of dismissal.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Gilbert, J.

1. The petition set out a cause of action. Compare Davis v. Bishop, 158 Ga. 66 (122 S. E. 555). Neither illegality nor any other remedy at law, under the facts alleged, would? afford the plaintiff complete and adequate relief. One of the jurisdictional grounds of equity is to cancel writings which cast a cloud over the complainant’s title; and if the allegations of the petition are true, the plaintiff would be entitled to that relief. Crane v. Barry, 47 Ga. 476; Jordan v. Callaway, 138 Ga. 209 (3) (75 S. E. 101).

2. It is insisted by the defendant in error that the petition was properly dismissed, because the Atlanta Banking & Savings Company was not made a party. If that company was a necessary party, this point should have been raised by special demurrer, and could not be raised by the general demurrer. Cason v. United Realty &c. Co., 158 Ga. 584 (123 S. E. 894).

3. Defendant in error insists “that on review of a decision by the court sustaining a general demurrer to an equitable petition, while generally the court should look only to the petition and demurrer to decide whether or not error has been committed, yet where the petition is vague and uncertain and does not disclose the nature of the debt to the .bank which was deducted from the proceeds of sale, nor who signed the notes to the bank for said debt, and where the plaintiff in error recites in his bill of exceptions that the answers of both of the defendants in error are necessary to a clear understanding of the errors complained of, that then in order to determine the facts of the case it is submitted that it is right and legal to look to the answers of defendant for that purpose.” Held: In considering the sufficiency of the petition on a demurrer, extraneous facts can not be considered. Such facts can not he considered, whether they are found in the defendant’s answer or otherwise. Such facts, even if contained in the demurrer, could not be considered, because such a demurrer would be “speaking,” and this is never allowed. Clark v. East Atlanta Land Co., 113 Ga. 21, 27 (38 S. E. 323). “It is the office of a demurrer to deal with the sufficiency of allegations actually made. Beyond this it can not properly go.” Constitution Publishing Co. v. Stegall, 97 Ga. 405 (2) (24 S. E. 33). Jones v. McNeely, 114 Ga. 393 (40 S. E. 248); Kelly v. Strouse, 116 Ga. 872, 883, bottom of page (43 S. E. 280).

4. The court erred in sustaining the general demurrer.

Judgment reversed.

All the Justices concur.

Eoy E. Calhoun demurred to the petition, on the following grounds: (1) That “the averments of the petition set forth no good and sufficient cause of action against the defendants in this case.” (2) Because “it appears from the averments in the petition that plaintiff is not entitled to the relief prayed for against said Calhoun in this case.” Both of the defendants filed answers setting up facts at variance from the allegations of the petition, thus raising issues of fact. The court sustained the general demurrer and dismissed the petition. The exception is to that judgment. The bill of exceptions specifies, in addition to the petition and the demurrer, the answers of both defendants, and the same were brought to this court as part of the record.

G. N. Anderson and 3. M. Morris, for plaintiff.

Napier, Wright & Wood and J. A. Noyes, for defendants.