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Action on account, etc. Fulton Civil Court. Before Judge Wright.
1. Where within fifteen days after a cause becomes in default the defendant pays accrued costs and files his defensive pleadings no judgment opening such default is either necessary or authorized.
2. A judgment overruling a general demurrer and sustaining a special demurrer and allowing time to amend, while not subject to direct review, where a final judgment is later entered dismissing the petition (no amendment having been filed), the question presented in a proper appeal after such final judgment necessarily involved the question of whether the special demurrer was properly sustained.
3. The bill of particulars was not subject to the defendant's special demurrers.
Fulton Air Service, Inc. filed suit on open account against P. R. Lake and concededly the defendant filed no defensive pleadings until the day following the appearance day at which time he filed his answer and demurrers. Two days thereafter the defendant obtained an order of court opening the default subject to objection and no objection appears from the record to have been made in the trial court. Thereafter, on April 14, 1961, the trial court overruled the defendant's general demurrer but sustained his special demurrer, attacking the bill of particulars and the allegations making reference thereto, giving the plaintiff twenty days in which to amend. No amendment was filed, and on June 2, 1961, the trial court entered a judgment dismissing the action which judgment read in part as follows: "More than twenty days have elapsed since said order of court, and plaintiff having failed to amend to meet the said order of said court, the above entitled action is hereby ordered dismissed, with cost cast upon the plaintiff." The plaintiff now assigns error on the judgments adverse to it.
1. The contention is made that the defensive pleadings were filed before the order opening the default and that therefore the plaintiff has a judgment by default and the subsequent proceedings were nugatory. Such contention is without merit. In the case of Whitsett v. Hester-Bowman Enterprises, 94 Ga. App. 78 (93 SE2d 788), it was pointed out that a judgment opening a default within fifteen days is no longer necessary and is unauthorized. While, under such decision, a question as to whether the costs have been paid before the pleadings were filed could have been made and decided by the trial court, such question does not appear from the record to have been raised, and in the absence thereof it must be assumed that the costs were timely paid.
3. The "bill of particulars" attached to the plaintiff's petition was not attacked on the ground that the items were not listed in sufficient detail so as to place the defendant on notice of the demand against him or to limit the plaintiff to a particular cause of action, but on the contrary, such demurrers were based on the ground that the "bill of particulars" did not show to whom the merchandise and services were delivered or by whom they were ordered. Accordingly cases exemplified by Parker Heating Co. v. Minneapolis-Honeywell Regulator Co., 102 Ga. App. 27 (115 SE2d 410); and Kilgore v. Gulf Oil Corp., 102 Ga. App. 619 (117 SE2d 199), dealing with the description of the article or services included in the bill of particulars are not applicable to the present case.
In Holcombe v. Parker, 98 Ga. App. 17, 19 (104 SE2d 595), it was said: "In Southern Ry. Co. v. Grant, 136 Ga. 303, 304 (71 SE 422), it is held not necessary that the petition set forth the ground upon which the plaintiff claims the defendant is liable to him on the account upon which the suit is brought." In the Southern Ry. case it was held that if the action on the account was against a corporation and the account was in fact not incurred by the corporation or was incurred by an agent of the corporation not authorized to bind it then no recovery could be had against the corporation. Under these and similar cases such questions are matters of evidence, and the petition in the present case, while not precisely in accord with the Jack Jones form, followed the usual allegations of such form and did not otherwise show facts barring a recovery. The petition was not subject to the defendant's special demurrer, and the judgment sustaining such demurrer, as well as the final judgment of dismissal, was error and must be reversed.
Judgment reversed. Carlisle, P. J., and Eberhardt, J., concur.
Charles D. Wheeler, B. W. Crecelius, contra.
William C. Rimmer, Jr., for plaintiff in error.
Friday May 22 23:28 EDT

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