Gibson v. Smith

Atkinson, Presiding Justice. A petition filed by Rachael Gibson was so amended as to allege in substance that petitioner owns described realty, on which she borrowed $500 in 1920 from defendant Smith; that after several payments on the debt she "granted” the farm for the years 1932 and 1933 to Smith and his codefendant, Earl Gibson, to cultivate and retain the proceeds to pay off the balance of the debt; that petitioner does not now owe Smith any money on the land; that after the two years defendants have continuously used and worked the land and have deprived petitioner of its enjoyment, greatly to her annoyance, inconvenience, injury, and damage; that the value of its use is $500 per annum for the years 1934-1937; and that she should be allowed to operate her farm free of molestation. The prayers were (a) for process; (b) for judgment for $2000; (c) for injunction to prevent defendants from entering upon the land and from interfering with the operation thereof by her or her agents; (d) that defendant Smith be enjoined from conveying the land to the defendant Gibson, and that the latter be enjoined from receiving a conveyance; (e) for general relief. Held: 1. The petition alleged a cause of action for an accounting, and was sufficient to prevent dismissal on general demurrer, whether or not it set forth a cause of action for all the relief prayed. Babb v. McKinnon, 185 Ga. 663 (2a) (196 S. E. 488) ; Horton v. Lovejoy, 186 Ga. 165 (197 S. E. 240) ; Grimmett v. Barnwell, 184 Ga. 461, 463 (192 S. E. 191, 116 A. L. R. 257). It was erroneous to dismiss the action on the ground that it appeared from the allegations of the petition as amended that the plaintiff had a full and adequate remedy at law. 2. The court did not err in overruling the general demurrer and the various grounds of special demurrer to the defendants’ answer, for any reason assigned, that were insisted upon in the brief for the plaintiff in error. Judgment on demurrer to the .petition as amended reversed. Judgment overruling the demurrer to the answer affirmed. All the Justices concur. Ozé B. Horton, for plaintiff. Wright ■& Stewart and G-. G. Bunn, for defendants.