1. The plea or answer here filed might be denominated as a plea or answer of suspension, but is included in the general term "plea in abatement."
2. "Pleas or answers in abatement must allege with the greatest certainty in every particular every fact necessary to their sufficiency. No presumptions of law or fact are allowed in their favor, but on the contrary every intendment must be taken against them."
3. "A cause for abatement may exist at an early stage of an action, and cease to exist at a later stage. As a rule when the cause no longer exists, the action can not be abated on the ground that it once existed. *Page 379 Matter in abatement of plaintiff's action must exist at the time of filing the plea." (Italics ours.)
4. Where the plea of suspension was based upon a temporary injunction or restraining order which set a date for a hearing thereon, yet alleged only "that said injunction has never been heard," when such plea is attacked by demurrer and calls upon the defendant to specifically allege whether the restraining order was in force at the time of the filing of the plea in suspension, and the defendant failed to meet such demurrer, the judge did not err in striking the plea.
5. After the striking of such plea there was no pleading in behalf of the defendant in force in this case, and the judge did not err in entering a judgment in the suit for breach of forthcoming bond.
DECIDED NOVEMBER 20, 1942. This is a suit on a forthcoming bond, properly alleging the giving or executing of the bond on September 24, 1941; that the legal notices that the property would be sold October 7, 1941, at 11:00 a. m. were legally given; that said advertisement was publicly read before the court-house door in said county; that the property was called for by the petitioner but was not forthcoming; and alleges all the prerequisites authorizing a recovery. The petition prays for judgment in an amount which was within the amount provided in the bond, and for process requiring the defendants to be and appear at the next term of court to answer the complaint. The defendants allege in their answer: "First. That on the third day of October 1941 the plaintiff and the said Motor Contract Company was enjoined from the sale of said property by an order signed by the Honorable R. N. Hardeman, judge of the superior court of said State and County and said injunction was set for hearing on the 11th day of October 1941. That said injunction has never been heard. Second. That defendants hereto attach a copy of said order marked `Exhibit A' [which shows that it was only a temporary injunction]. Third. Further answering the petition of plaintiff defendants say that they are not indebted to plaintiff as the injunction suit has never been heard."
The plaintiff demurred to the answer as follows: "And now comes the plaintiff and at the first term of the court in accordance with law, files this special demurrer and motion to dismiss to the answer in the above case, and for grounds thereof alleges: First. (a) Your defendants' answer is demurred to for the reason that the full and complete petition and all orders thereon is not attached to the answer. (b) That no allegations appear in said *Page 380 answer whereby any violation has been made of any such injunction in the event one was granted. (c) That there are no allegations in said paragraph or in the petition showing that any sale was made by the sheriff. That in the event said injunction was pending, it would not be any bar to the trial of the present case. Second. Paragraph second is specially demurred to for the reason that the complete petition and any and all orders are not attached and the order attached to the petition would in no way legally prevent the trial of the present case. Third. Your plaintiff specially demurs to said answer for the reason that it does not make any replication to the paragraphs in the petition as required by law. Fourth. Plaintiff moves to dismiss said answer for the further reason that the injunction referred to does not exist as it was dissolved by the judge on October 6, 1941, and such order dissolving said injunction was granted before the sale took place. The defendants had due notice of the granting of such order and failed and refused to produce the property at the time and place of sale as required under the bond sued upon. Fifth. That said petition for injunction, all orders thereon and the answer filed by plaintiff are court records of file in the superior court of said county and such documentary evidence is herewith attached and made a part of this motion. Wherefore, plaintiff prays that this demurrer and motion to dismiss be sustained and that judgment be entered up in accordance with law."
The demurrer was filed on December 15, 1941. The judge entered the following order: "General demurrer is sustained and the answer is hereby dismissed. In open court Dec. 15, 1941." Thereupon the court, without hearing any evidence in support of the averments of said answer, granted the following judgment: "It appearing that all prerequisites of the law have been complied with and that no legal defense has been made and no answer is now pending, therefore it is ordered by the court, sitting as court and jury, that P. L. Youmans as sheriff of the city court of Swainsboro for the use of Motor Contract Company do have and recover of the defendants T. N. Brinson and Marvin B. Fanning the sum of $255.81 and 7 % int. from date of judgment and all costs of court." The petition was filed on October 8, 1941, the injunction was dated October 3, 1941, the demurrer alleged that the temporary injunction was dissolved October 6, 1941 (see discussion hereinafter in the opinion of the question of speaking demurrer as it relates to this allegation), the defendants' answer was filed December 8, 1941, and the demurrer was filed December 15, 1941. It will be noted that the plea or answer does not specifically state that the temporary restraining order was in force at the time of the filing of the plea. "As a rule pleas or answers in abatement can be used only to present matter which defeats or suspends the present suit, and must be so used, if at all." 1 C. J. 28, § 9. "Pleas in abatement, being dilatory pleas, are not favored either at common law, or under the Codes and practice acts." 1 C. J. 28, § 7. The plea or answer here filed might be denominated a plea or answer of suspension, but is included in the general term, "plea in abatement." 1 C. J. 13, § 16. It seeks to suspend the present suit upon the allegation that the temporary injunction "has never been heard." "Pleas or answers in abatement must allege with the greatest certainty in every particular every fact necessary to their sufficiency. No presumptions of law or fact are allowed in their favor, but on the contrary every intendment must be taken against them." 1 C. J. 28, § 7 (18). Thus, in the instant case, although the judge had passed a temporary restraining order as set out in the plea or answer, he might, after further considering the matter with or without what the plaintiff denominates a hearing, while the matter was still in the breast of the court, in his sound legal discretion, have decided to dissolve the temporary injunction before the plea or answer was filed, and might have so done. He might have done so on his own motion. Thus, we think because of the vague and ambiguous allegation that the matter of suspension "has never been heard," when such a plea or answer was attacked by the demurrer of the plaintiff which, in effect, called upon the defendants to allege specifically whether the temporary injunction was of force (or had been dissolved in the instant case) at the time of the filing of the plea or answer, and because the defendants failed to meet this demurrer, the court was authorized to strike this pleading under the rule which is well stated in 1 C. J. 32, § 15, as follows: "A cause for abatement may exist at an early stage of an action, and cease to exist at a later *Page 382 stage. As a rule when the cause no longer exists, the action cannot be abated on the ground that it once existed. Matter inabatement of plaintiff's action must exist at the time of filingthe plea." (Italics ours.) Particularly is this rule applicable to the facts of this case where the cause for abatement or suspension is a temporary restraining order the general intent and purpose of which is not that it will be permanent in character, but remain only temporarily in force. The fact that while the demurrer in effect alleged that the plea failed to allege "plainly, fully, and distinctly" (Code, § 81-305) that at the time of its filing the matter in abatement did not exist (Dougherty v. Dougherty, 126 Ga. 33, 34, 54 S.E. 811), yet the fact that it went further and stated that the injunction was dissolved on a named date before the filing of the plea (when the plea itself does not so state) would not convert the whole demurrer into a speaking demurrer; for if it be said that it was unnecessary to go this far in the allegations of the demurrer, this would be an allegation without which the pleading would yet be sufficient (surplusage) and such "surplusage does not harm" or prejudice in the instant case. Bl. Law Dict., 3d ed. 1687. Construing the answer of the defendants most strongly against the pleaders, we do not think that the mere allegation "that said injunction has never been heard," is the equivalent of saying that the temporary injunction had never been dissolved, or that there was any injunction pending which would have restrained the trial of the case. Thus, having properly stricken all of the pleading of the defendants in the case, the judge did not err in entering the judgment recited above.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.