Ocean Steamship Co. v. Anderson

Lewis, J.

To the November term, 1896, of the city court of Savannah, Joseph J. Wilder, trading under the name of Wilder & Co., brought an action of trover against the Ocean Steamship Company for the recovery of certain cotton. To this suit, besides a special plea of partial payment, the. defendant filed a plea in terms as follows: “ And now comes the defendant by its attorneys at law, Lawton & Cunningham, and, answering the petition in the above-stated case, denies all the allegations of each paragraph of both counts of the petition.” Upon these pleas the case went to trial, and a verdict was rendered against the defendant. This verdict was set aside upon writ of error to this court, and a new trial ordered. See Ocean Steamship Co. v. Wilder & Co., 107 Ga. 220. When the case came on for trial a second time at the May term, 1900, of the court below, the plaintiff moved to strike the plea which has been quoted, claiming that it was a plea of the general issue, and as such not allowable. The court sustained this motion and struck the plea objected to, refusing to allow the defendant to file an amendment, on the ground that there was nothing by which to amend. It does not appear that the case was ever marked in default. The plaintiff, admitting the plea of partial payment, submitted evidence of his unliquidated damages, and the court upon motion thereupon directed a verdict for the plaintiff for the amount so proved. To the rulings of the court striking its answer, refusing to allow its amendment, and directing a verdict for the plaintiff, defendant excepted. Wilder having died, the case proceeded here in the name of his executor, Anderson.

1. It was error for the court to strike the original plea of defendant on the ground that it was a plea of the general issue. This plea is exactly in conformity with the act of 1895, as codified in section 5051 of the Civil Code, which declares that the defendant “may in a single paragraph deny any or all of the allegations . . of the petition.” The petition in this case was set forth in two counts, each count containing several paragraphs. The answer expressly denied all the allegations of each paragraph of both counts of the petition, in accordance with the right granted in the section of the code to which we have alluded. This question is expressly decided in the case of DeSoto Co. v. Hammett, 111 Ga. 24. It is true that was a suit upon an open account, but the present case is an action of trover and in no sense a suit upon an unconditional contract in writing; so the same principle would apply.' There is quite a difference between the plea of the general issue, which our law prohibits, and the form of plea laid down in the act of 1895, which was followed by the defendant in this case. The plea of the general issue denies no special allegation of the petition. It is simply a conclusion of the pleader that he is not indebted in manner and form as alleged. On the other hand, a denial of the allegations of the petition, whether made in a single sentence or in as many sentences as there are paragraphs in the petition, is specific in its nature, and meets the objections to a plea of the general issue by' reducing to an issue each allegation made by the petition.

2. The amendment which was disallowed by the court set forth allegations in accordance with the ruling made by this court when the case was here before (107 Ga. 220), and was. consequently a meritorious amendment. The ruling of the court was made upon the erroneous idea that there was nothing in the original answer of the defendant by which to amend. This was error. Direction is given, however, that upon the next hearing the court below can pass upon the question of allowing such amendment, without regard to the reason on which the original ruling with respect thereto was based.

Judgment reversed, with direction.

All the Justices concurring except Simmons, G. J., and Cobb,. J., absent.