Funderburg v. Farr Furniture Co., 141 S.E.2d 600 (Ga. Ct. App. 1965). · Go Syfert
Funderburg v. Farr Furniture Co., 141 S.E.2d 600 (Ga. Ct. App. 1965). Cases Citing This Book View Copy Cite
7 citation events across 2 distinct courts.
Cited for
111 Ga. App. at 272 Pleadings and amendments challenging debt liability1 citing casePeace, 131 Ga. 637 (2, 3) (62 SE 1025); Van Harlengen v. Bearse, 26 Ga. App. 473 (1) (106 SE 306). See to the same effect Hirsch v. Oliver, 91 Ga. 554 (18 SE…opening of page *272 (no citing court says what it cites this page for)
  • Keith v. Alexander Underwriters Gen. Agency, Inc., 463 S.E.2d 732 (Ga. Ct. App. 1995).published
    Accord Fulton Paper Co. v. Reeves, 212 Ga. App. 314, 316 (2) ( 441 SE2d 881 ) (1994); Funderburg v. Farr Furniture Co., 111 Ga. App. 271, 272-273 (2) ( 141 SE2d 600 ) (1965).
Other citing cases1 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Funderburg
v.
Farr Furniture Company
41060.
Court of Appeals of Georgia.
Mar 8, 1965.
Published opinion
141 S.E.2d 600
1965 Ga. App. LEXIS 944
Thurmond, Hester, Jolles & McE'bmrray, Otis F. Askin, for plaintiff in error., Henry J. Iieffeman, contra.
Felton, Jordan, Russell.
Cited by 2 opinions  |  Published
Russell, Judge.

Where a cause of action is set out against an individual defendant as to what is in fact a joint liability of that defendant and another, if the fact appears on the face of the petition the point may be made by special demurrer (Merritt v. Bagwell, 70 Ga. 578, 585); if it does not so appear, the defense that there is a lack of a necessary party must be raised by a plea in abatement filed at the first term. Bray v. [*272] Peace, 131 Ga. 637 (2, 3) (62 SE 1025); Van Harlengen v. Bearse, 26 Ga. App. 473 (1) (106 SE 306). See to the same effect Hirsch v. Oliver, 91 Ga. 554 (18 SE 354); Dickenson v. Hawes, 32 Ga. App. 173 (122 SE 811). On the other hand, where a petition shows on its face that not the defendant but another owes the debt, the , issue may be reached by general demurrer (Strauss v. Garrett & Sons, 101 Ga. 307, 28 SE 850), and where the defendant pleads matter which, if sustained, would absolve him from liability on the debt, such matter is not a dilatory plea but is in bar of the action as to him. A plea in bar may be filed at any time. Galloway v. Merrill, 213 Ga. 633 (3) (100 SE2d 443); Dykes v. Dykes, 214 Ga. 288 (104 SE2d 430); Hill v. Cox, 151 Ga. 599 (2) (107 SE 850).

This was an action on open account naming as defendant L. G. Funderburg, d/'b/a L. G. Funderburg Company. The defendant, Funderburg, answered admitting jurisdiction and denying the remaining allegations of the petition. More than 30 days thereafter he filed an amendment which was verified and complied with the terms of Code § 81-1310 by a recital that the matter contained therein was not omitted for purpose of delay and the amendment was not now offered for delay, which amendment stated that L. G. Funderburg Company is a corporation, that such corporation contracted the debt on which the plaintiff declared, and that the defendant named in the suit did not contract the debt, received no benefit from the materials sold, never agreed to pay the debt sued on, has had no dealings with the plaintiff, and is not indebted to him in any amount whatever. The amendment was stricken on motion. Error is assigned on the final judgment in behalf of the plaintiff and on the order striking the amendment as an erroneous and controlling ruling. It was of course controlling in that it barred the individual defendant from proving that the debt was not his but that of another. “By an amendment and after the time for answer has expired, a defendant may change, alter or modify his original answer (Richardson v. Hairried, 202 Ga. 610, 44 SE2d 237); and he may set up new, distinct, and even contradictory defenses of which notice was not given in his original answer, provided he makes the required affidavit. Code § 81-1310; Mendal v. L. F. Miller & Sons, 134 Ga. 610 (2) (68 SE 430); Estill v. [*273] Estill, 147 Ga. 358 (94 SE 304).” Atlantic Refining Co. v. Spears, 211 Ga. 787, 788 (3) (89 SE2d 177). All that the amendment here did was to state a particular reason for the denial of the debt contained in the original answer. Since it complied with the statutory requirements pertaining to the amendment of answers, the defendant’s right to amend at the time was absolute. The trial court erred in sustaining the motion to strike the amendment, and this renders the subsequent proceedings nugatory.

Decided March 8, 1965. Thurmond, Hester, Jolles & McE'bmrray, Otis F. Askin, for plaintiff in error. Henry J. Iieffeman, contra.

Judgment reversed.

Jordan, J., concurs. Felton, C. J., concurs in the judgment.