BLACK v. MILNER HOTELS INCORPORATED

Supreme Court of Georgia1942-11-10No. No. 14266

194 Ga. 828

Summary · law.co

Holding. The judgment overruling the demurrer was correct because the defendant waived any objection to jurisdiction by filing a demurrer on the merits without first challenging jurisdiction, and each count of the petition stated a valid cause of action. The judgment is affirmed.

A defendant who files a demurrer challenging the merits of a case without first objecting to the court's jurisdiction over the defendant's person waives any later challenge to jurisdiction. Once a defendant submits a demurrer on substantive grounds, the court obtains jurisdiction over that defendant, and subsequent objections to jurisdiction are untimely. This principle applies to both legal and equitable actions, including specific performance cases.

In this case, the plaintiff sued on a written lease contract, seeking both specific performance and damages. A petition containing two counts—one requesting specific performance and another requesting damages—is not defective merely because it includes both remedies. When a contract for leasing real property is in writing, signed by both parties, certain, fair, and supported by adequate consideration, courts will grant specific performance. Additionally, when a petition adequately alleges that a defendant repudiated the contract, the plaintiff need not allege an ongoing tender of performance.

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

Key issues

Waiver of personal jurisdiction by failure to raise the objection before pleading to the merits
Whether a petition for specific performance of a lease may include an alternative count for damages
Standards for granting specific performance of a written lease contract
Requirement of tender of performance when breach by repudiation is alleged

Procedural posture

The defendant filed a general demurrer and later a second demurrer raising jurisdictional objections; the trial court overruled both, and the defendant appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Bell, Presiding Justice.

1. Want of jurisdiction of the person may be waived so far as the rights of the parties are concerned; and where a defendant appears and pleads to the merits without excepting to the jurisdiction of the court, he thereby waives any objection to the jurisdiction of his person. The filing of a demurrer without questioning the jurisdiction is pleading to the merits, within the rule. Code, § 81-503; Lyons v. Planters Loan & Pavings Bank, 86 Ga. 485 (12 S. E. 882, 12 L. R. A. 155); Ray v. Hicks, 146 Ga. 685 (2) (92 S. E. 48); Berry v. Watkins, 158 Ga. 304 (123 S. E. 102); Hudgins Contracting Co. v. Redmond, 178 Ga. 317 (173 S. E. 135). The foregoing principles as to waiver may apply, not only to actions at law, but also to equity cases, including actions for specific performance. Adams v. Lamar, 8 Ga. 83; Waters v. Waters, 167 Ga. 389 (6) (145 S. E. 460). Accordingly, in the instant case the filing of the first demurrer gave to the court jurisdiction of the defendant’s person, and the protestations made for the first time in the second demurrer came too late.

2. “Where a contract for the lease of real estate is in writing, signed by both parties, is certain and fair, is for an adequate consideration, and capable of being performed, a court of equity, as a matter of course, will decree its specific performance.” F. & W. Grand Stores v. Eiseman, 160 Ga. 321 (7) (127 S. E. 872).

3. Where a petition based on such a lease contract contains two counts, in the first of which there is a prayer for specific performance, and in the second there is a prayer for damages, the second count does not render the petition demurrable; and an original petition seeking specific performance only may be amended by adding a second count for recovery of damages. Armor v. Stubbs, 150 Ga. 520 (104 S. E. 500); Loewus v. Eskridge & Downing Inc., 175 Ga. 456, 460 (165 S. E. 576).

4. The petition having sufficiently alleged repudiation of the contract by the defendant, no allegation of continuing tender was necessary. Turman v. Smarr, 145 Ga. 312 (2) (89 S. E. 214); Fraser v. Jarrett, 153 Ga. 441 (3) (112 S. E. 487); Chastain v. Platt, 166 Ga. 307 (3) (143 S. E. 378).

5. The following ground of demurrer: “This defendant demurs to said petition as amended, and moves to strike the same, on the ground that this court has no jurisdiction of this defendant, he being a non-resident of the State of Georgia and no personal service having ever been made on him; and says that if this court should hold that it has jurisdiction of the defendant in this case, that it would be violative of his rights under the constitution of the United States, . . and that any law of the State of Georgia authorizing this procedure against this defendant is unconstitutional and violative of his rights as a citizen of the United States,” did not bring in question the constitutionality of any law of this State, no particular statute being stated as violating the Federal constitution.

6. Under the ruling stated above, as applied to the pleadings, each count of the petition stated a cause of action, the first for specific performance and the second for damages. The judgmént overruling the general grounds of the first demurrer and all grounds of the second demurrer was not erroneous, as contended.

Judgment affirmed.

All the Justices concur.