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BENNETT v. REWIS

Supreme Court of Georgia1955-03-14No. 18874
211 Ga. 507

Summary

Holding. The trial court properly overruled the defendant's motion to dismiss and special demurrers because the plaintiff's amended petition adequately described the disputed land by specifically identifying it as lot 69 in the thirteenth land district of Echols County, thereby curing the insufficient description in the original petition. The judgment is affirmed.

Bennett sought an injunction against Rewis for continuous trespassing and timber cutting on land that Bennett claimed to own. Bennett's initial complaint contained an inadequate description of the property in question, making it impossible to identify with sufficient certainty which land was involved in the dispute. Under established law, a petition that fails to adequately identify the land at issue may be dismissed by general demurrer.

Before the case proceeded further, Bennett amended his complaint to provide a proper description of the land—specifically identifying it as lot 69 in the thirteenth land district of Echols County. The court determined that this amendment cured the deficiency in the original description, and the amended complaint adequately described the property where Bennett claimed Rewis was trespassing. Because the amendment resolved the initial defect, the trial court properly rejected Rewis's motion to dismiss and his special demurrers.

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

Key issues

  • Sufficiency of land description in trespass petitions
  • Curing defective property descriptions through amendment
  • Timeliness and propriety of general and special demurrers
  • Standard for dismissal when petition fails to identify land with certainty

Procedural posture

The defendant filed a general demurrer and special demurrers to the plaintiff's original petition for trespass and injunctive relief; the trial court overruled the demurrers after the plaintiff amended the petition, and the defendant appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Head, Justice.

A petition to enjoin continuous trespasses on land, which fails to describe the land with a sufficient degree of certainty to establish the identity of the land claimed by the petitioner, is insufficient and may be dismissed on general demurrer. Laurens County Board of Education v. Stanley, 187 Ga. 389 (200 S. E. 294); Bruce v. Strickland, 201 Ga. 526 (40 S. E. 2d 386); Miller v. Stewart, 202 Ga. 127 (42 S. E. 2d 445); Hamilton v. Evans, 208 Ga. 780, 781 (4) (69 S. E. 2d 739). “When a petition is so defective that there can be no lawful recovery thereon, an oral motion to dismiss the case in the nature of a general demurrer may be made at any time before verdict.” Kelly v. Strouse & Bros., 116 Ga. 872 (43 S. E. 280); Darley v. Starr, 150 Ga. 88 (102 S. E. 819).

In the present case, the petitioner alleged that he is “the true and lawful owner” of the lands described in paragraph 1 of his petition. The description in paragraph 1, prior to amendment, was insufficient to locate the lands referred to therein.

The petitioner relied on ownership and on possession. A bare right of possession will authorize recovery of lands. Code §§ 105-1402, 105-1403; Whiddon v. Williams Lumber Co., 98 Ga. 700 (25 S. E. 770); Ault v. Meager, 112 Ga. 148 (37 S. E. 185); Fender v. Gardner, 153 Ga. 460 (112 S. E. 368); James v. Riley, 181 Ga. 454 (2) (182 S. E. 604). In paragraph 4 it is alleged that the defendant owns lands in two of the lots set out in paragraph 1, “lying north of a certain line between your petitioner and the defendant, which line is clearly located, and established by ‘blazed’ trees.” Whether or not the allegations of the petition were sufficient to show that the defendant was in possession of land in named land lots north of an established and blazed line, and the petitioner in possession of lands in the same lots south of the line, need not be determined.

Generally, a petition may be amended at any time before a final order sustaining a general demurrer, or a motion to dismiss in the nature of a general demurrer. In the present case, the insufficient description of the land, in so far as it related to title, was cured by amendment. It appears that the description in the original petition and in the amendment both refer to land in lot 69 in the thirteenth land district of Echols County. “An insufficient description of the land sued for may be cured by amendment, where it appears that the description in the original petition and that in the amendment refer to the same land.” Stringer v. Mitchell, 141 Ga. 403, 404 (2a) (81 S. E. 194); Luquire v. Lee, 121 Ga. 624 (49 S. E. 834); Martin v. Oakhurst Development Corp., 197 Ga. 288 (2), 294 (29 S. E. 2d 179). The petition having been amended to describe accurately the lands upon which the petitioner claimed the defendant was trespassing and cutting timber, the motion to dismiss was properly overruled.

There was no reversible error in overruling the special demurers of the defendant. “If a petition as originally filed be subject to a special demurrer, an amendment of the petition in other respects will not authorize the filing of such a special demurrer at the trial term.” Wardlaw v. Southern Ry. Co., 199 Ga. 97, 99 (4a) (33 S. E. 2d 304); Johns v. Nix, 196 Ga. 417 (26 S. E. 2d 526); Cooper v. Minis, 204 Ga. 357 (2) (49 S. E. 2d 824). If the special demurrers of the defendant came too late, as having been filed at the trial term, and attacking allegations of the petition which had not been amended, this would have authorized the court to dismiss the demurrers rather than to overrule them. But since the demurrers were not meritorious, it was not error to overrule them. This ruling in no wise conflicts with any ruling in Mayo v. Owen, 207 Ga. 641 (63 S. E. 2d 649).

Judgment affirmed.

All the Justices concur.