There were no allegations in the petition entitling the plaintiff to general relief, and the law makes no provision for a judgment of the superior court to confirm an executor's sale as described in the petition. Therefore the prayers of the petition for confirmation of the sale and for general relief may be disregarded, and the case stands as a suit at law seeking judgment for a stated sum of money. Under the Code, § 2-3005, the Court of Appeals, and not the Supreme Court, is given jurisdiction of these cases.
Transferred to the Court of Appeals. All the Justicesconcur.
Nos. 13048, 13049. OCTOBER 10, 1939.
J. T. Watson filed suit against S. B. Watson as executor of the will and estate of W. A. Watson, and the Fidelity and Casualty Company of New York as surety on the executor's bond, alleging, that the executor sold at public outcry certain described land belonging to the estate of W. A. Watson; that at the sale the plaintiff bid $3750, E. H. McCord raised plaintiff's bid, and plaintiff raised McCord's bid until McCord finally bid $5750, and plaintiff raised this bid to $5800, at which bid the property was knocked off to him; that McCord did not bid in good faith, but was bidding as a puffer for the executor, with a secret understanding between them that McCord would not be required to comply with his bid; and that by reason of this fraudulent conduct on the part of the executor the plaintiff was required to pay $2050 more for the land than its true value, and which he would not have had to pay but for the fraudulent conduct of the executor and McCord; that a portion of the lands had been sold to the American Legion Post, which had constructed a building thereon at a cost of $1250, and that the plaintiff had constructed a building on another portion of the land at an expense of $1000, and for these reasons a rescission of the sale could not be had without adversely affecting the rights of innocent parties. The prayers were that the sale be confirmed, and that petitioner have judgment against the defendants for $2050; and for general relief. To this petition the Fidelity and Casualty Company of New York demurred on the ground that it alleged no cause of action against it. This demurrer was sustained, and the action dismissed as to that defendant; and the plaintiff excepted. S. B. Watson filed his general demurrer on the ground that the petition alleged no cause of action. This demurrer was overruled, and Watson excepted.