
    19864.
    BIGBY v. BIGBY.
    Submitted October 14, 1957
    Decided November 8, 1957.
   Hawkins, Justice.

The petition as originally filed sought a divorce upon the ground of cruel treatment, temporary and permanent alimony, the custody of a minor child, and the recovery of a one-half interest in described real and personal property alleged to have been acquired by the joint efforts of the parties. So far as the record discloses, there was no general demurrer to this original petition. By amendments the plaintiff sought to add three more_ counts to the petition, numbered 2, 3, and 5; count 2 seeking a recovery based upon an implied or resulting trust arising out of the furnishing by the plaintiff of a portion of the purchase price of property acquired by the defendant in his name; the 3rd count seeking a recovery of damages for fraud and deceit, an action ex delicto; and the 6th count seeking a recovery for the value of services rendered by the plaintiff to the- defendant as housekeeper over a period of twenty years. While various demurrers and objections were urged against the different amendments, no-ruling thereon is excepted to. To the petition as finally amended the defendant demurred upon the ground that it failed to state a cause of action either in law or equity. This demurrer the trial court sustained and dismissed the petition, to which judgment the plaintiff excepts. Held:

While causes of action ex contractu and ex delicto cannot be joined in the same suit, even in separate counts (Teem v. Town of Ellijay, 89 Ga. 154, 15 S. E. 33; Wolff v. Southern Ry. Co., 130 Ga. 251, 60 S. E. 569; Arnold v. Walton, 205 Ga. 606, 612, 54 S. E. 2d 424; Chisen v. Sampeck, 211 Ga. 382, 86 S. E. 2d 210), no special demurrer, if any, raising the question of multifariousness or misjoinder of causes of action has been passed upon by the trial judge (Tingle v. Maddox, 186 Ga. 757, 198 S. E. 722); and since the petition as originally brought stated a cause of action for divorce, temporary and permanent alimony, and the custody of a minor child, it was error to sustain a general demurrer and dismiss the petition as a whole. Hay v. Collins, 118 Ga. 243 (44 S. E. 1002); Carolina Construction Co. v. Branch, 164 Ga. 837 (3a) (139 S. E. 676); Green v. Green, 176 Ga. 421 (168 S. E. 266).

. Judgment reversed.

All the Justices concur.

Howell C. Bavan, for plaintiff in error.

Dewey Smith, contra.  