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FARMERS & MERCHANTS BANK OF MANCHESTER v. GIBSON et al.
18777.
MOBLEY, Justice.
Cancellation. Before Judge Fort. Talbot Superior Court. August 16, 1954.
1. An oral motion to dismiss is the equivalent of a general demurrer, and the question therein is not whether any particular allegation has been defectively pleaded, but whether the petition in its entirety fails to set out a cause of action. Minnesota Lumber Co. v. Hobbs & Livingston, 122 Ga. 20 (1) (49 S. E. 783); Capps v. Edwards, 130 Ga. 146 (1) (60 S. E. 455); Haynes v. Thrift Credit Union, 192 Ga. 229 (2) (14 S. E. 2d 871); Kanes v. Koutras, 203 Ga. 570, 573 (47 S. E. 2d 558).
2. "A general demurrer does not raise questions as to multifariousness, duplicity, or misjoinder of causes of action, or as to nonjoinder or misjoinder of parties. As to such matters, a special demurrer is necessary." Grant v. Hart, 192 Ga. 153 (4) (14 S. E. 2d 860). See also Greenwood v. Starr, 174 Ga. 503 (1) (163 S. E. 500); Hughes v. Cobb, 195 Ga. 213 (1) (23 S. E. 2d 701); Hall v. Browning, 195 Ga. 423 (5) (24 S. E. 2d 392).
3. Grounds of special demurrer are not good unless set forth in writing and filed at the first term. Calhoun v. Mosley, 114 Ga. 641 (2) (40 S. E. 714); Wood v. Wood, 166 Ga. 519 (7) (143 S. E. 770). While the defendants in the present case filed written special demurrers, so far as appears from the record they were not passed upon by the trial court.
4. Since the passage of the Uniform Procedure Act, where a suit is filed in a superior court, which has general jurisdiction both in law and in equity, the petition should not be dismissed on general demurrer if it states a cause of action for either legal or equitable relief. Pardue Medicine Co. v. Pardue, 194 Ga. 516 (1) (22 S. E. 2d 143).
5. The allegations of the petition--to the effect, that the defendant husband, who was an insolvent debtor of the bank, executed a deed of gift conveying all of his property to his wife for the purpose of hindering and delaying creditors--were sufficient, as against demurrer, to set forth a cause of action for the relief prayed, and the trial court erred in striking the petition on oral motion of the defendants. Echols v. Thompson, 210 Ga. 37 (77 S. E. 2d 521).
Farmers & Merchants Bank of Manchester filed in the Superior Court of Talbot County, against Mr. and Mrs. R. D. Gibson, an equitable petition in one count, which as amended sought cancellation of a deed of gift alleged to have been executed by the defendant R. D. Gibson to his wife for the purpose of hindering and delaying creditors, a money judgment against R. D. Gibson for stated amounts alleged to be due the petitioner on three promissory notes and on an open account, an accounting by the wife of all monies received by her from the sale of assets alleged to have been fraudulently transferred to her under the deed of gift by her husband, a receiver, and an injunction to prevent the wife from transferring any more of the assets. A temporary restraining order was granted.
The defendants demurred to the amended petition on general and special grounds and also filed an answer in the nature of a cross-petition.
The trial court, without passing upon the demurrers, sustained an oral motion made by counsel for the defendants to strike the amended petition, to which ruling the petitioner excepted.
George R. Jacob, contra.
Rayford D. Bulloch, for plaintiff in error.
SUBMITTED NOVEMBER 8, 1954 -- DECIDED JANUARY 10, 1955.
Saturday May 23 02:45 EDT


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