Rollins v. General Acceptance Corp.

Nichols, J. The petition as amended set forth a cause of action, and the court did not err in overruling the defendant’s demurrer thereto. [395] Decided June 14, 1955 Rehearing denied July 7, 1955. Charles W. Anderson, for plaintiff in error. V. K. Meador, contra. General Acceptance Corporation brought an action in the Civil Court of Fulton County against G. L. Rollins, Sr., to recover a $589 balance due it. Attached to the petition as an exhibit was a sworn statement of the balance due, which alleged that the balance, the same amount shown in the petition, was due and unpaid. The defendant filed general demurrers to the petition on the grounds that no cause of action was set forth, that the petition was too vague and indefinite to enable the defendant to plead thereto, that no copy of the alleged contract and no bill of particulars were attached to the petition, and that the allegation that the defendant was indebted to the plaintiff in the amount of $589 was a mere conclusion. The plaintiff filed an amendment, alleging that the defendant had purchased a described automobile from Blankenship Motors under a conditional-sale contract, which was duly transferred to the plaintiff, a copy of which was attached to the petition as an exhibit and showed a proper transfer; that the defendant had defaulted in the payments, and after repossession was notified that, unless the balance of $1,510 was paid on a named day, the automobile would be sold pursuant to the terms of the contract, a copy of the notice being attached to the amendment; that the automobile was sold to the highest and best bidder for $800; and that, after crediting this amount to the defendant and $121 as an unearned insurance premium, he owed the plaintiff $589, for which the action was brought. The defendant demurred to the amendment as setting up a new and distinct cause of action, and to the exhibit attached to the original petition, and the verification as being insufficient in law, [396] and also renewed general demurrers to the petition as amended on the grounds that no cause of action was set forth, and that the original petition did not contain enough to amend by. The court overruled the demurrers, and the defendant excepted. [395] (a) The amendment was not subject to the ground of demurrer that it sought to set up a new and distinct cause of action. (b) The original petition was not subject to the ground of demurrer that it did not contain enough to amend by. Judgment affirmed. Felton, C. J., Gardner, P. J., Townsend and Carlisle, JJ., concur. Quillian, J., dissents.