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Lawskills.com Georgia Caselaw
CONLEY MILLWORK COMPANY v. EPLER.
39942.
Action on contract. Fulton Civil Court. Before Judge Chambers.
CARLISLE, Presiding Judge.
In a suit naming a corporation as the only party defendant, the trial court did not err in sustaining a general demurrer and motion to strike the answer of an individual filed in reply to the suit of plaintiff.
This is a suit on oral contract by G. J. Epler in which Conley Millwork Company is named as defendant. Plaintiff's petition alleges that the defendant is a corporation duly organized and existing under the laws of the State of Georgia and having its principal place of business in Fulton County, Georgia. Within the time provided for answering this suit, a document was filed which stated: "In reply to suit by G. J. Epler against Conley Millwork Company, we wish to answer as follows: (1) The defendant is a corporation, having the principal offices in Fulton County." This document was signed, "W. E. Kirkland, Vice President."
The plaintiff filed a general demurrer and a motion to strike the answer in its entirety. This demurrer was sustained and "the document purporting to be an answer" was dismissed. Thereafter, when the case came on regularly for hearing and plaintiff offered evidence in support of his case, the trial court declared the case in default and rendered judgment for the plaintiff. The defendant has excepted to this judgment and the antecedent rulings on the demurrer and the motion to strike.
The document filed in reply to this suit did not even purport to be an answer of the corporate defendant. Nowhere within this paper is it recited that this is the answer of defendant, and the document is not signed by the defendant, its attorney, or an authorized agent purporting to be acting for and on behalf of the corporation. The writing is that of W. E. Kirkland, vice-president of some undesignated origin in which he says: "We wish to answer" in reply to this suit.
Even where a writing filed is purported to be a plea or answer of the defendant, but is not signed by the defendant or his counsel, the court will not refuse a motion to strike the answer because of this fact. Code Ann. 81-305; Brooke v. McWhorter, 130 Ga. 590 (61 SE 404). However, the answer here filed is nothing more than an answer of Kirkland as an individual and is wholly irrelevant for the sufficient reason that the individual was not named as a party to the suit. The trial court's action in sustaining the demurrer and in striking the answer of Kirkland was proper disposition of this totally irrelevant matter. See Central of Ga. R. Co. v. Dickerson, 15 Ga. App. 293 (82 SE 942). Since no answer of the defendant had ever been filed, the court did not err in declaring the case in default and rendering judgment for plaintiff upon proof of his claim.
Westmoreland, Hall & Pentecost, Harry P. Hall, Jr., contra.
Marion A. Sams, Augustine Sams, Edward S. Sams, for plaintiff in error.
DECIDED APRIL 3, 1963 -- REHEARING DENIED APRIL 18, 1963.
Friday May 22 22:11 EDT


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