Crowley v. Calhoun , 161 Ga. 354 ( 1925 )

Gilbert, J.

1. The petition set out a cause of action. Compare Davis v. Bishop, 158 Ga. 66 (122 S. E. 555). Neither illegality nor any other remedy at law, under the facts alleged, would? afford the plaintiff complete and adequate relief. One of the jurisdictional grounds of equity is to cancel writings which cast a cloud over the complainant’s title; and if the allegations of the petition are true, the plaintiff would be entitled to that relief. Crane v. Barry, 47 Ga. 476; Jordan v. Callaway, 138 Ga. 209 (3) (75 S. E. 101).

2. It is insisted by the defendant in error that the petition was properly dismissed, because the Atlanta Banking & Savings Company was not made a party. If that company was a necessary party, this point should have been raised by special demurrer, and could not be raised by the general demurrer. Cason v. United Realty &c. Co., 158 Ga. 584 (123 S. E. 894).

3. Defendant in error insists “that on review of a decision by the court sustaining a general demurrer to an equitable petition, while generally the court should look only to the petition and demurrer to decide whether or not error has been committed, yet where the petition is vague and uncertain and does not disclose the nature of the debt to the .bank which was deducted from the proceeds of sale, nor who signed the notes to the bank for said debt, and where the plaintiff in error recites in his bill of exceptions that the answers of both of the defendants in error are necessary to a clear understanding of the errors complained of, that then in order to determine the facts of the case it is submitted that it is right and legal to look to the answers of defendant for that purpose.” Held: In considering the sufficiency of the petition on a demurrer, extraneous facts can not be considered. Such facts can not he considered, whether they are found in the defendant’s answer or otherwise. Such facts, even if contained in the demurrer, could not be considered, because such a demurrer would be “speaking,” and this is never allowed. Clark v. East Atlanta Land Co., 113 Ga. 21, 27 (38 S. E. 323). “It is the office of a demurrer to deal with the sufficiency of allegations actually made. Beyond this it can not properly go.” Constitution Publishing Co. v. Stegall, 97 Ga. 405 (2) (24 S. E. 33). Jones v. McNeely, 114 Ga. 393 (40 S. E. 248); Kelly v. Strouse, 116 Ga. 872, 883, bottom of page (43 S. E. 280).

4. The court erred in sustaining the general demurrer.

Judgment reversed.

All the Justices concur. G. N. Anderson and 3. M. Morris, for plaintiff. Napier, Wright & Wood and J. A. Noyes, for defendants.