Henderson v. Bd. of Registration

231 Ga. 173 (1973)

200 S.E.2d 739

HENDERSON v. FULTON COUNTY BOARD OF REGISTRATION & ELECTIONS et al.

27979.

Supreme Court of Georgia.

Argued September 14, 1973.

Decided October 4, 1973.

*175 Henry M. Henderson, for appellant.

Webb, Parker, Young & Ferguson, John Tye Ferguson, Huie, Brown & Ide, R. William Ide, G. Donald Johnson, for appellees.

NICHOLS, Justice.

1. The first defense of the original defendants was a motion to dismiss for failure "to set forth a cause of action" and the first defense of the Metropolitan Atlanta Rapid Transit Authority was that the complaint failed to set forth a claim upon which relief could be granted. Under the provisions of the Civil Practice Act (Ga. L. 1966, pp. 609, 622, as amended; Code Ann. § 81A-112 (b)), these motions could properly be a part of the defendants' responsive pleadings.

The judgments dismissing the complaint are regular on their face and without a transcript of the hearing where such motions were ruled on it cannot be said that such motions were not "ripe" for determination. Accordingly, the first, second and fourth enumerations of error are without merit.

2. The allegations of the complaint seek to have the judgment previously affirmed by the Court of Appeals set aside because certain "overvotes" were not counted, yet the quoted allegations of the complaint disclose that the plaintiff had knowledge of such "overvotes" prior to the judgment sought to be set aside, and such issue was expressly ruled upon by the Court of Appeals. Compare Thomason v. Thompson, 129 Ga. 440 (2) (59 SE 236); Kitchens v. Clay, 224 Ga. 325 (161 SE2d 828).

Under such circumstances, the complaint affirmatively showed that the plaintiff was not entitled to the relief sought and the judgment dismissing the complaint must be affirmed.

Judgment affirmed. All the Justices concur.