Auld, administratrix, v. Schmelz

Supreme Court of Georgia1945-07-03No. No. 15140

199 Ga. 633

Summary · law.co

Holding. The judgment is affirmed. The trial court did not err in dismissing the administratrix's petition on general demurrer, because pleading defects were cured by the verdict and the petition failed to allege facts sufficient to support either arrest of the judgment or reopening based on insufficient assets.

An administratrix filed a petition seeking to set aside a judgment rendered against her in favor of the defendant. She challenged the sufficiency of the defendant's pleadings and sought to reopen the judgment on the ground of insufficient assets. The court held that although pleading defects ordinarily warrant setting aside a judgment, such defects are curable when a verdict has been rendered, and any defects in the defendant's answer were remedied by the verdict in this case. Additionally, the administratrix's petition failed to allege specific facts demonstrating a lack of assets under her control, which would have been necessary to support her request to reopen the judgment on that basis.

The court distinguished this case from prior decisions where no verdict was rendered or where multiple defects existed beyond mere pleading insufficiencies. Because the administratrix's petition lacked sufficient factual allegations regarding asset depletion and did not establish grounds for equitable relief, the trial court properly dismissed it.

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

Key issues

Whether pleading defects can be cured by a verdict at trial
Whether an administratrix adequately pleaded insufficient assets to reopen a judgment
Proper grounds for arresting or setting aside a judgment on motion

Procedural posture

The administratrix appealed from the trial court's dismissal of her petition on general demurrer challenging a money judgment rendered against her.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Bell, Chief Justice.

1. If the pleadings are so defective that no legal judgment can be rendered, the judgment will be arrested or set aside. But a judgment will not be arrested or set aside for any defect in the pleading or record that is aided by verdict, or amendable as matter of form. Code, §§ 110-702, 110-704, 110-705; Worthy v. Farmers Life Confederation, 139 Ga. 81 (76 S. E. 856).

2. The prayers contained in the defendant’s answer and amendments, considered with the plaintiff’s petition, were sufficient as a matter of pleading to support the money verdict in favor of the defendant against the plaintiff, since, if they were defective, the defects were amendable and were cured by the verdict. Fitzpatrick v. Paulding, 131 Ga. 693 (63 S. E. 213); Wilson v. Groover, 146 Ga. 369 (91 S. E. 113); Haynes v. Armour Fertilizer Works, 146 Ga. 832 (92 S. E. 648); Mell v. McNully, 185 Ga. 343 (195 S. E. 181); Rollins v. Personal Finance Co., 49 Ga. App. 365 (175 S. E. 609).

(a) The present case differs on its facts from Schmitt v. Schneider, 109 Ga. 628, 632 (25 S. E. 145), in which no verdict was rendered, the petition having been dismissed on general demurrer. It is also materially differeht from Evans v. Thompson, 143 Ga. 61 (84 S. E. 128), and Riordan v. Baldwin, 150 Ga. 540 (104 S. E. 204), in neither of which was the absence of a prayer the only defect; nor was the judgment attacked, as here, by a petition amounting, as to this phase, to a mere motion in arrest. 3.. Nor did such petition or motion of the administratrix show sufficient cause for opening the judgment for the purpose of allowing her to plead insufficient assets, since the petition, which she prayed to have “entered as her plea of plene administravit,” did not allege any facts to show that, aside from the building, she did not have in her control sufficient assets to satisfy the verdict and judgment against her. See. in this connection, the Code, §§ 113-2108, 113-2110; Parker v. Dowdy, 58 Ga. 440; Lanier v. Huguley, 91 Ga. 791 (18 S. E. 39).

No. 15140.

July 3, 1945.

Rehearing denied July 23, 1945.

(a) In this view, it is unnecessary to determine whether, if the petition had alleged an actual want of assets, it at the same time alleged sufficient cause in equity for reopening the judgment in order to allow such belated defense, whether in the exercise of discretion, or otherwise. See, in this connection, Walton v. Jones, 53 Ga. 91; Gause v. Walker, 55 Ga. 129; Whiddon v. Williams, 98 Ga. 310 (24 S. E. 437).

4. The remaining prayers of the petition related to matters with respect to which the plaintiff would have no right as against the defendant, unless the judgment in his favor should be either arrested or reopened as prayed.

5. Under the preceding rulings, the judge did not err in dismissing on general demurrer the petition of the administratrix.

■Judgment affirmed.

Jenkins, P. J., Duckworth, Atkinson, and Wyatt, JJ., concur.

Sam G. DetteJbach, for plaintiff.

Mitchell & Mitchell, for defendant.