McGruder v. McGruder

215 Ga. 716 (1960)

113 S.E.2d 119

McGRUDER v. McGRUDER.

20761.

Supreme Court of Georgia.

Submitted January 12, 1960.

Decided February 11, 1960.

Oscar D. Smith, Jr., for plaintiff in error.

James H. Fort, contra.

HEAD, Presiding Justice.

The petition of Benjamin F. McGruder against Addie Pearl McGruder sought the cancellation of a deed from the plaintiff to the defendant. The defendant filed an answer denying the allegations of the petition, except the allegation that she was a nonresident. At the conclusion of the plaintiff's evidence, counsel for the defendant made a motion for a nonsuit, which was granted. The exception here is to the grant of the nonsuit.

"A judgment of this court reversing a judgment of nonsuit does not adjudicate that the plaintiff is in law entitled to recover upon the facts alleged in the petition. . . The nonsuit of the Georgia practice corresponds in its office and effect to the demurrer to the evidence of the common law. On such a demurrer the only question is whether the evidence is sufficient in law to maintain the issue in fact made by the pleadings; and no exception can be taken to any defect in the pleadings, as the demurrer does not extend to them. If the evidence supports the issue made by the pleadings, it is proper to overrule a demurrer to the evidence, or a motion for a nonsuit in the nature of such a demurrer, but it is not thereby adjudicated that the pleadings are in law sufficient *717 to authorize a recovery." Kelly v. Strouse & Bros., 116 Ga. 872 (4) (43 S. E. 280); Clark v. Bandy, 196 Ga. 546 (27 S. E. 2d 17); Sewell v. Anderson, 197 Ga. 623 (30 S. E. 2d 102); Davis v. W. P. Brown & Sons Lumber Co., 198 Ga. 486 (32 S. E. 2d 253).

The question to be decided in the present case is not whether the evidence of the plaintiff was sufficient to authorize the relief which he sought. The record does not disclose that the defendant has invoked any ruling as to the sufficiency of the petition to state a cause of action, either by the filing of a general demurrer to the petition, or by an oral motion to strike in the nature of a general demurrer at the time of the trial. The only question to be decided on the exception to the grant of the nonsuit is whether the evidence of the plaintiff supported the allegations of his petition.

The allegations of the petition were supported by the evidence, and it was error to grant the nonsuit.

Judgment reversed. All the Justices concur.