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Specific performance. Before Judge A. M. Anderson. Bibb Superior Court. October 3, 1950.
ALMAND, Justice.
1. Where a case is dismissed on general demurrer and this court determines that such ruling was correct, it becomes unnecessary for the court to pass on an assignment of error complaining of an antecedent order on special demurrers.
2. A defendant in a suit in the superior court is bound to set up all defenses that he has to the suit, either legal or equitable, and to pray for all the relief needed in aid thereof, ordinary or extraordinary; and he can not at will decline to litigate as a defendant over these matters and bring an independent suit against his adversary who has already brought him into court.
3. The trial judge properly overruled the exceptions to the auditor's finding that the petition as amended was subject to general demurrer, and committed no error in dismissing the case.
Z. C. Clay, in an equitable action filed in Bibb Superior Court against G. C. Smith, sought to enjoin a pending action in the same court by Smith against the plaintiff; to cancel a sale of the plaintiff's property by the defendant under a power of sale contained in a deed conveying certain described property to Smith to secure a debt; to enjoin Smith from foreclosing said security deed until Smith had fulfilled a contract with the plaintiff, wherein Smith had contracted to build a dam and recreation house on the property of Clay; and to recover damages on account of the failure of Smith to properly construct the dam and recreation house; for a judgment against Smith in an amount alleged to be due a partnership composed of Smith and the plaintiff; and for attorney's fees.
After the defendant had filed defensive pleadings, including general and special demurrers, the case was referred to an auditor with authority to rule on all demurrers and pass on all issues of fact and law. Certain special demurrers were sustained by the auditor, who ordered that the petition be dismissed, but allowed the plaintiff ten days in which to meet the demurrers. Within the time allowed, the plaintiff filed an amendment, whereupon the defendant renewed his demurrers, and filed a general demurrer on the ground that the petition as amended stated no cause of action. At the hearing on these demurrers, the defendant also moved orally to dismiss the petition, and the auditor entered an order sustaining the general demurrers to the petition as amended, and dismissed the same. Thereafter the auditor filed his written findings of law. He found that the failure of the last amendments of the plaintiff to meet the terms of the rulings on special demurrers caused the petition to be dismissed as of the date of the previous order, and, as an alternative finding, that the oral motion of the defendant should be sustained and the petition as amended dismissed.
The plaintiff filed exceptions to each of the rulings of the auditor on the special and general demurrers. No objection was made before the trial judge that the court could not consider the exceptions to the rulings of the auditor on the special demurrers because said rulings had become the law of the case, there being no exceptions pendente lite to said. rulings. The trial judge reviewed and passed upon all the exceptions and entered an order overruling them and approving the findings of the auditor, and an order dismissing the petition as amended. This order is the only order excepted to in the bill of exceptions before us.
Under the view we take of the case, it is unnecessary for us to pass upon the contention of the defendant that the auditor's rulings on the special demurrers, in the absence of exceptions pendente lite, and the plaintiff's election to file an amendment, became the law of the case. The rulings on the special demurrers were set out in the, auditor's report, and exceptions to these rulings were filed by the plaintiff, to which no objections were made by the defendant. The trial judge considered and passed upon these exceptions as being properly made, and in our view of the case we will follow the pattern set by the judge. Our main concern is not so much as to how the defendant won the skirmish, but as to why the plaintiff lost the battle.
1. The ultimate finding of the auditor was that the petition as amended was subject to dismissal on general demurrer. If for any reason the petition as amended was subject to such demurrer--whether upon reasons determined by the auditor or others not enumerated ( Crittenden v. Southern Home Building & Loan Assn., 111 Ga. 266 (5), 36 S. E. 643)--it would not be error for the trial court to approve the finding of the auditor and dismiss the petition as amended. "Where a demurrer containing both general and special grounds is sustained, the judgment must be affirmed if the petition was subject to any of the grounds of the general demurrer." Interlochen Estates v. Bank of Atlanta, 206 Ga. 570 (2) (57 S. E. 2d, 924). See also Hopkins v. Kidd, 192 Ga. 791 (16 S. E. 2d, 570); Grace v. Interstate Bond Co., 193 Ga. 810 (20 S. E. 2d, 131).
2. The barriers, legal and equitable, to Clay's maintenance of this action appear from his petition. All of the many claims that Clay asserts against Smith in the present action stem from the contract between the parties, whereby Smith contracted to build a dam and make other improvements on Clay's property, and Clay agreed to pay Smith the cost of the dam and other improvements, plus 10% of such cost, and executed to him a loan deed conveying Clay's property to Smith as security for the payment of such sums. Subsidiary to, but independent of, this contract, Clay and Smith entered into a partnership agreement as to the operation of the premises after the improvements had been made, and Clay leased the property to the partnership. It is alleged in the petition that it was agreed that the cost of construction of the sanitary connections to the building incurred by Smith would be paid by Clay, and that he did pay Smith, by including in the note now being sued on by Smith the sum of $1400. The plaintiff further alleges in his petition:
"There is now pending in this court a suit on a note by the defendant herein against the petitioner herein, said suit being docketed as Number 12944. To this suit your petitioner has filed his answer setting up an affirmative defense in which he alleges that defendant is indebted to him in a sum considerably larger than defendant's claims. Petitioner's claim in that proceeding as well as the note on which the defendant is suing arose out of this same general plan between the parties to develop and operate a negro recreational place. The defenses and the prayer for judgment against defendant in that suit are dependent upon an accounting of the partners in the operation of the partnership. That proceeding should be a part of this suit, and petitioner is asking that suit Number 12944 in this court be made a part of this proceeding and all issues therein be tried in this suit in order to avoid a multiplicity of suits, and that plaintiff, G. C. Smith, in that suit be enjoined from proceeding on it . . . As set forth in said suit Number 12944, said partnership is indebted to petitioner in the sum of $2000 as salary and $900 rent, or a total of $2900, of which sum defendant is liable for $1450, and petitioner is asking judgment against himself and defendant, G. C. Smith, in the sum of $2900."
It is clear from these allegations and prayers that Clay is now seeking to set up, by an independent proceeding, claims and defenses that could be asserted in the pending suit, in the same court, of the defendant against the plaintiff. Under the Uniform Procedure Acts of 1884 and 1887, now embodied in Code 37-901, 37-902, 37-905, 37-906 and 37-907, the plaintiff in this case could by answer and cross-petition assert his claims for legal and equitable relief in the pending action against him by Smith that he is now seeking to do in this action. The purpose of the aforementioned Code sections is to vest in the superior court authority to settle in one suit a controversy between the parties. In the pending suit of Smith v. Clay, the latter is bound to set up all defenses that he has to the suit, either legal or equitable, and pray for all relief needed in aid thereof, ordinary and extraordinary. "He can not at will decline to litigate as a defendant over these matters and bring an independent suit against his adversary, who has already brought him into court." McCall v. Fry, 120 Ga. 661, 663-64 (48 S. E. 200). Every contention made in the present action flows from the agreement between the parties as to the building of the dam and other improvements made by the defendant; and the subject-matter of the pending suit is a note executed by the plaintiff as payment for certain improvements made by the defendant in executing the building contract. If the plaintiff is entitled to any of the relief sought in his petition--and this we do not pass upon--such relief can and should be asserted in the action sought to be enjoined. Georgia Power Co. v. Mayor &c. of Athens, 206 Ga. 513 (57 S. E. 2d, 573). See also Becker v. Donalson, 133 Ga. 864 (7) (67 S. E. 92); Reynolds Banking Co. v. Southern Pacific Guano Co., 140 Ga. 498 (79 S. E. 132); Hamilton v. First National Bank of Rome, 180 Ga. 820 (180 S. E. 840).
3. For the foregoing reasons, it was not error for the trial judge to approve the finding of the auditor that the petition as amended was subject to dismissal on general demurrer, and to enter an order dismissing the case.
Judgment affirmed. All the Justices concur.
Miller, Miller & Miller, for defendant.
Thomas W. Johnson and J. Douglas Carlisle, for plaintiff.
Saturday May 23 05:18 EDT

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