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Lawskills.com Georgia Caselaw
STINCHCOMB v. HOARD, Solicitor General.
22946.
Injunction. Barrow Superior Court. Before Judge Dunahoo.
QUILLIAN, Justice.
Floyd G. Hoard, Solicitor General of the Piedmont Judicial Circuit brought this action in his official capacity, and on behalf of the State, in Barrow Superior Court against A. J. Stinchcomb. The petition alleged that the defendant operated a business purporting to be a Disabled American Veterans' Club in Barrow County approximately two miles from the city limits of Winder; that the defendant knowingly maintains this establishment for the purpose of selling liquor and beer and for the purpose of gambling and operating gambling devices; that the establishment has no license to sell beer, liquor or to conduct gambling and it encourages drunkenness and riotous conduct since the defendant keeps the place open until after midnight with customers remaining therein; that the defendant was arrested on December 11, 1964, for possession of beer for they purpose of sale; that on the premises were large quantities of beer, some of it on refrigeration, one fifth of whiskey with the seal broken and two-thirds of its contents remaining, and gambling devices in two pinball machines which gave "free games" to those who played them; that Barrow County is "dry," the sale of liquor or beer or the possession of beer for the purpose of sale being illegal; that the business is a "blind tiger" and sells beer to minors as evidenced by an attached affidavit; that the business encourages idleness, loitering and vagrancy and has a tendency to breed crime and debauch and destroy the morals of young people as well as some of the older people in the community; that the premises have no police protection; that the establishment is a public nuisance.
The prayers were that the establishment be temporarily padlocked; that the premises be declared a public nuisance and be permanently padlocked and closed; that the petitioner have judgment against the defendant for all expenses and costs of bringing the suit.
Attached to the petition as amended were the following exhibits: an affidavit (purportedly referring to sale of beer to minors) signed by two individuals stating they and another purchased beer on November 14, 1964, at the defendant's establishment and that no adult accompanied them; an affidavit by the solicitor that he accompanied the officers on the raid of the defendant's premises and there were 95 cases of beer, one bottle of liquor, two pinball machines and playing cards and a young girl and three young boys found there; an affidavit by an officer on the raid that he found on the premises 95 cases of beer, two pinball machines and a fifth of liquor, that one person was arrested and charged with public drunkenness; an affidavit by the solicitor that the allegations of the petition attested to by his other affidavit were true, that he further avers "to the best of his knowledge and belief the allegations contained in this petition are true."
The defendant filed both general and special demurrers to the petition, and, upon the petition being amended, reviewed the grounds of demurrer. At the hearing argument, the trial judge overruled the general and special demurrers. From this judgment the defendant excepted and assigns error.
A petition is subject to general demurrer in two instances: (1) where it is inherently insufficient to set forth the plaintiff's right to the recovery sought or the relief prayed; (2) when it reveals that there is a valid defense that may, at the defendant's election, be interposed to the cause pled, such as the statute of limitation, the bar of laches, or the statute of frauds. In the first of these instances a general demurrer may attack the petitioner upon the broad ground that it sets forth no cause of action. In the latter instance the demurrer must specifically point out the defense disclosed by the allegations of the petition and specify the law under which it may be urged. See Smith v. Central of Ga. R. Co., 146 Ga. 59 (1) (90 SE 474); Lee v. Holman, 184 Ga. 694 (4) (193 SE 68); Pittman v. Pittman, 196 Ga. 397, 412 (6) (26 SE2d 764); Kinney v. Kinney, 20 Ga. App. 816 (2) (93 SE 496); Ayers v. Taylor, 52 Ga. App. 534 (2) (184 SE 365).
The petition in the case sub judice did not meet the requirements of the law in showing what was necessary to obtain extraordinary relief of the nature therein prayed. A petition that seeks such relief is equally deficient when it fails to allege the facts necessary to entitle the plaintiff to extraordinary equitable relief or is deficient in that it does not attach as a part thereto the required affidavit positively verifying those facts. "Petitions for a restraining order, injunction, receiver, or other extraordinary equitable relief shall be verified positively by the petitioner or supported by other satisfactory proofs." Code 51-110.
In the present case the plaintiff did offer affidavits concerning some facets of the case set out in the petition but these affidavits taken singly or collectively were not sufficient to verify the cause plead in the petition, or to show the plaintiff's right to the equitable relief prayed. To the petition as a whole the affidavit of the solicitor recited: "to the best of his knowledge and belief the allegations contained in his petition are true." Hence, the case falls squarely within the rule pronounced in Carter v. Hayes, 214 Ga. 782, 783 (107 SE2d 799), that a verification of a petition by a solicitor that "the foregoing facts are true to the best of his knowledge and belief" is not a positive verification as contemplated by Code 81-110. See Kilgore v. Paschall, 202 Ga. 416 (43 SE2d 520). Thus, the petition in the instant case was not positively verified and the defendant's demurrer should have been sustained.
Judgment reversed. All the Justices concur.
Russell & McWhorter, T. Penn McWhorter, for plaintiff in error.
ARGUED MAY 10, 1965 -- DECIDED MAY 31, 1965.
Friday May 22 21:18 EDT


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