Muse v. Connell , 62 Ga. App. 296 ( 1940 )

While it is true that a cause of action against the defendant, as for a tort, would lie if he fraudulently inserted in the appeal record false statements and matter which brought about the decision unfavorable to the plaintiff, and which decision without such false statements and matter would have been favorable to the plaintiff, and he alleges that a decision based on the true evidence before the Atlanta Typographical Union, as appearing in the appeal record before it was tampered with by the defendant, would have been favorable to him, I think that this allegation is a conclusion of the pleader without any supporting facts. See Jones v. Ezell, 134 Ga. 553 (5) (68 S.E. 303); Harper v. Lindsey, 162 Ga. 44, 47 (132 S.E. 639); Weimer v. Savannah Union Station Co.,18 Ga. App. 570, 572 (90 S.E. 84); Horton v. Sanchez, 57 Ga. App. 612,617 (195 S.E. 873). While it is not necessary that a petition set forth the evidence by which a plaintiff expects to establish the traversable facts alleged, traversable facts must be alleged, and a bare conclusion is not good against general demurrer. It is not alleged that any member of the executive council informed the plaintiff, directly or indirectly, that it was the alleged falsely inserted matter that caused the decision to be rendered, and so far as the petition shows by allegation of facts the decision of reversal might have been based on genuine evidence which appeared in the appeal record. At most the petition shows that the plaintiff is of the opinion that the decision of reversal was rendered because of the fraudulent act of the defendant, and that he proposes to so prove on the trial of the case, but there are no facts pleaded to support these conclusions against the general demurrer that no cause of action was set forth against the defendant. If the decision of reversal was based on the genuine evidence appearing in the appeal record (and there are no facts alleged to show that it was not), instead of on the false and fraudulent inserted matter, the decision, however erroneous, was not one that was caused by any act of the defendant. While the court sustained the general demurrer for reasons other than those above given, I think the judgment should be affirmed under the well-established principle of law that, if a petition is subject to general demurrer, the judgment of the trial court in sustaining it will be affirmed although based on a wrong ground. I concur, however, in the ruling of the majority of the court that the present action is based on an invasion of a property right, and that it was brought within the statutory period of four years.