Pardue Medicine Company Inc. et al. v. Pardue et al.

Supreme Court of Georgia1942-09-22No. No. 14172

194 Ga. 516

Summary · law.co

Holding. The court affirmed the judgment, holding that the petition, which was brought by two children (one an adult suing in her own name and one a minor suing through a next friend) to recover personalty set apart as a year's support, was not subject to general demurrer on the grounds that the defendants raised.

The case addresses the proper procedural framework for bringing suit in Georgia's superior courts following the adoption of the uniform procedure act. Under modern procedural rules, a petition filed in a court with general jurisdiction in both law and equity cannot be dismissed merely because the plaintiff has an alternative legal remedy, so long as the petition alleges facts supporting either legal or equitable relief. Similarly, a petition that is legally sufficient as to any portion of the relief requested cannot be attacked by general demurrer, even if other aspects might be questionable.

The court also clarified the law governing suits by or on behalf of minor children. When property is designated as a year's support for minor children, legal title vests in those children jointly. If such property is later wrongfully taken, suit must be brought in the children's names. A child who reaches majority may continue to pursue such an action in her own name without any guardian, and a suit by a still-minor child through a next friend is not subject to demurrer simply because no guardian was formally appointed. The guardianship relationship terminates automatically upon the minor's reaching majority without need for a court order.

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

Key issues

When a superior court has general jurisdiction in law and equity, whether a petition can be dismissed for adequacy of legal remedy at law
Whether a petition good in substance as to any part of the relief sought is vulnerable to general demurrer
Whether children to whom property is set apart as year's support may sue to recover that property wrongfully taken
Whether a suit by a minor through a next friend is defective because brought without a guardian

Procedural posture

The defendants filed a general demurrer to the amended petition; the trial court overruled the demurrer, and the defendants appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Bell, Justice.

1. Since passage of tlie uniform procedure act, where a suit is filed in a superior court, which has general jurisdiction both in law and in equity, the petition is not subject to general demurrer on the ground that the plaintiff has an adequate remedy at law, if it states a cause of action “for either legal or equitable relief. Code, §§ 37-901, 37-907; Teasley v. Bradley, 110 Ga. 497 (4) (35 S. E. 782, 78 Am. St. R. 113); Artega v. Artega, 169 Ga. 595 (2 c) (151 S. E. 5); Lowery Lock Co. v. Wright, 154 Ga. 867 (1 b) (115 S. E. 801); Grimmett v. Barnwell, 184 Ga. 461, 463 (192 S. E. 191).

2. Nor is the petition in such case otherwise subject to a general demurrer assailing it as a whole, if it is good in substance for any part of the relief sought, either legal or equitable. Blaylock v. Hackel, 164 Ga. 257 (5) (138 S. E. 323); Calbeck v. Herrington, 169 Ga. 869 (152 S. E. 53).

3. Where property owned by one at the time of his death is set apart to his minor children as a year’s support, the title thereto vests in such children share and share alike, and a child’s arrival at majority does not divest his or her legal interest. Code, § 113-1006; Walden v. Walden, 191 Ga. 182 (12 S. E. 2d, 345). It follows that where property, after being so set apart to minor children, is taken and converted by other persons, a suit to recover the same or its value should be brought in the name of such children; and this is true regardless of whether they sue by guardian or next friend, or without representation. Code, § 3-109; Oliver v. McDuffie, 28 Ga. 522; Jack v. Davis, 29 Ga. 219 (2); Johnson v. James, 41 Ga. 597; Wood v. Haines, 72 Ga. 189; 25 Am. Jur. 93, 95, §§ 149, 152; 28 C. J. 1259, § 432.

4. The office of guardian of a minor expires by operation of law on arrival of the minor at majority, and no order severing the relationship is necessary. Lasseter v. Simpson, 78 Ga. 61 (3 S. E. 243); Phillips v. Taber, 83 Ga. 565 (7) (10 S. E. 270); Harvey v. Atkinson, 100 Ga. 178 (28 S. E. 31); Georgia Railroad Bank & Trust Co. v. Liberty National Bank & Trust Co., 180 Ga. 4 (2) (177 S. E. 803). Nor is a suit in the name of a minor by another person as next friend subject to general demurrer because it was not brought by a guardian, even though it may appear that the minor had a guardian at the time the suit was filed. Code, §§ 3-115, 37-1003, 49-111; Sanders v. Hinton, 171 Ga. 702 (156 S. E. 812); Dent v. Merriam, 113 Ga. 83 (38 S. E. 334).

No. 14172.

September 22, 1942.

(а) Accordingly, the instant action as instituted in the names of two children to whom property had been set apart as a year’s support, one suing in her own name without representation after arrival at majority, and the other who was still a minor suing by the former as next friend, was not subject to attack as a whole on the grounds that the right of action, if any, was in the guardian and not in the wards, and that the petition failed to allege that the guardian refused to sue. May v. Jones, 88 Ga. 308 (4) (14 S. E. 552, 15 L. R. A. 637, 30 Am. St. R. 154); Howard v. Edwards, 89 Ga. 367 (2) (15 S. E. 480); Carson v. Fears, 91 Ga. 482 (3) (17 S. E. 342); George v. Georgia Power Co., 43 Ga. App. 596 (5) (159 S. E. 756).

(б) Whether or not the petition might have been subject to a special demurrer attacking it separately as to the minor, no such demurrer was filed. See LaGrange Mills v. Keener, 121 Ga. 429 (3) (49 S. E. 300); Stanley v. Stanley, 123 Ga. 122 (51 S. E. 287).

5. Under the preceding rulings, the allegations of the amended petition were sufficient to state a cause for recovery of personalty or its value, as against the demurring defendants. Whether it may have shown a cause for other relief, either legal or equitable, need not be determined, no particular allegation or prayer having been challenged. Hartsfield Co. v. Willis, 192 Ga. 219 (2) (14 S. E. 2d, 735).

6. Nor was the petition defective for misjoinder or nonjoinder of plaintiffs or defendants, as contended in any of the grounds of special demurrer os taken. In connection with these grounds of demurrer, see Lowery Lock Co. v. Wright, 154 Ga. 867 (3), 872 (supra).

7. The court did not err in overruling the demurrer on all grounds.

Judgment affirmed.

All the Justices concur.

John H. Strother and J. Wightman Bowden> for plaintiffs in error.

Helen Douglas Manlcin and Grover Middlebroohs, contra.