Ocilla Southern Railroad v. McAllister

OCILLA SOUTHERN RAILROAD CO. v. McAllister

Ocilla Southern R.R. v. McAllister, 93 S.E. 26 (Ga. Ct. App. 1917)

Court: Court of Appeals of Georgia · State Appellate Courts
Decided: June 27, 1917
Docket: No. 8540
Judges: Wade
Citations: 93 S.E. 2620 Ga. App. 4001917 Ga. App. LEXIS 913

Cited by 8

Headnotes

1. A petition not addressed to a court, but headed with the name of the State and of a county therein, and otherwise in the form of a suit, and filed in the office of the clerk of the superior court of that county, and to which was annexed process signed by the clerk and bearing teste in the name of the judge of that court, requiring the appearance of the defendant at the return term of the court, could be amended by addressing it to that court. 2. Under the code-section requiring that suits against railroad companies for damages on account of injury to the person or property of the plaintiff shall be brought in the county in which the cause of action originated, and declaring that “any judgment rendered in any other county than the one in which the cause so originated shall be utterly void” (Civil Code of 1910, § 2798), it must appear from the petition in such a suit that the cause of action originated in the county of the suit. As this essential jurisdictional fact did not appear from the petition in this case, the court erred in overruling the general demurrer to the petition. 3. Necessary jurisdictional allegations omitted from a petition may be supplied by amendment; and in this case the judgment overruling the demurrer to the petition is reversed with leave to make such amendment by the time the remittitur from this court is made the judgment of the court below.

Summary

Action for damages; from Wilcox superior court—Judge Crum. February 23, 1917. The demurrer was on the grounds: (1) The petition sets forth no cause of action. (2) Taking the allegations of fact contained in said petition as true, no valid judgment could be rendered in this court against this defendant. (3-4)- The petition is not addressed to any court, and no process returnable to this court is . prayed for.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Wade

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Wade, C. J.

1. The plaintiff’s petition was headed, “State of Georgia, County of Wilcox,” and was filed in the office of the clerk of the superior court of that county, but was not addressed to the superior court or any court. It prayed for process requiring the defendant to appear at the next term of “this court.” Attached to it was a process with the caption, “State of Georgia, Wilcox County,” bearing teste in the name of the judge of the superior court of Wilcox county and signed by the clerk of that court, requiring the defendant to be and appear “at the next superior court to be held in and for said county on the third Monday in June next.” The petition was amendable by addressing it. to the superior court of Wilcox county, and the trial court properly allowed such amendment. Parish v. Davis, 126 Ga. 840 ( 55 S. E. 1032 ); Georgia Southern & Florida Railway Co. v. Pritchard, 123 Ga. 320 ( 51 S. E. 424 ); Atlantic Coast Line R. Co. v. Cook, 6 Ga. App. 128 ( 64 S. E. 665 ); Nance v. Patterson, 10 Ga. App. 843 ( 74 S. E. 438 ); Kelly v. Fudge, 2 Ga. App. 759 ( 59 S. E. 19 .); Civil Code, §§ 5682, 5691.

2. Special defects or omissions in the plaintiff’s petition may always be taken advantage of by demurrer; and unless cured by amendment, the petition should be dismissed. Park’s Ann. Code, § 5631. All necessary jurisdictional facts must be clearly and distinctly set out in the petition, and their absence may be taken advantage of by demurrer. White v. Atlanta, Birmingham & Atlantic R. Co., 5 Ga. App. 308 ( 63 S. E. 234 ); Flint River & Northeastern R. Co. v. Sanders, 18 Ga. App. 766 ( 90 S. E. 655 ). In the present case it does not appear from the petition that the alleged injuries were inflicted in the county in which the suit was brought. A suit against a railroad company for personal injuries, which does not allege that they were inflicted in the county of the suit, fails to show that the court to which the petition is addressed has jurisdiction to try the case. Section 2798 of the Civil Code of 1910 provides that the company “shall be sued in the county in which the cause of action originated; . . and any judgment rendered in any other county than the one in which the cause so originated shall be utterly void.” “A suit brought elsewhere than is there provided is void.” Central of Georgia Ry. Co. v. Dowe, *402 6 Ga. App. 858 ( 65 S. E. 1100 ). See also Southern Ry. Co. v. Summers, 118 Ga. 175 ( 45 S. E. 27 ). The general demurrer in this ease, therefore, should have been sustained. Flint River & Northeastern R. Co. v. Sanders, supra, and cases there cited.

3. The omission to state in the petition all facts necessary to give the court jurisdiction of the case is amendable. Park’s Ann. Code, § 5691. In view of the ruling stated above, the judgment of the trial court, overruling the demurrer to the petition, is reversed, but with leave for the plaintiff so to amend the petition, by the time the remittitur from this court is made the judgment of the court below, that it shall appear therefrom that the injuries sued for were inflicted in Wilcox county.

Judgment reversed, with direction.

George and Luke, JJ., concur.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 8 cases

View all citing references →

Relies on it most ⓘ

Dutton v. Freeman99 S.E.2d 204 (Ga. 1957)
Burton v. Wadley Southern Railway Co.103 S.E. 881 (Ga. Ct. App. 1920)
Stone v. COLONIAL CREDIT COMPANY91 S.E.2d 835 (Ga. Ct. App. 1956)
Gamble v. Shingler96 S.E. 705 (Ga. Ct. App. 1918)
Payne v. Chambliss108 S.E. 472 (Ga. Ct. App. 1921)
Sloan v. Smith116 S.E. 200 (Ga. Ct. App. 1923)

Most recent

Horton v. Delta Air Lines, Inc.141 S.E.2d 783 (Ga. Ct. App. 1965)
Dutton v. Freeman99 S.E.2d 204 (Ga. 1957)
Stone v. COLONIAL CREDIT COMPANY91 S.E.2d 835 (Ga. Ct. App. 1956)
Butler v. Winton192 S.E. 835 (Ga. Ct. App. 1937)
Sloan v. Smith116 S.E. 200 (Ga. Ct. App. 1923)
Payne v. Chambliss108 S.E. 472 (Ga. Ct. App. 1921)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 10

Depth	Case	Cited by
	Flint River & Northeastern R.R. v. Sanders, 90 S.E. 655 (Ga. Ct. App. 1916)	7
	Atl. Coast Line R.R. v. Cook, 64 S.E. 665 (Ga. Ct. App. 1909)	12
	Summers v. Southern Ry. Co., 45 S.E. 27 (Ga. 1903)	10
	Kelly v. Fudge, 59 S.E. 19 (Ga. Ct. App. 1907)	10
	White v. Atlanta, Birmingham & Atl. R.R., 63 S.E. 234 (Ga. Ct. App. 1908)	9
	Ga. Southern & Fla. Ry. Co. v. Pritchard, 51 S.E. 424 (Ga. 1905)	8
	Parish v. Davis, 55 S.E. 1032 (Ga. 1906)	7
	Nance v. Patterson, 74 S.E. 438 (Ga. Ct. App. 1912)	2
	Cent. of Ga. Ry. Co. v. Dowe & Co., 65 S.E. 1091 (Ga. Ct. App. 1909)	7
	Southern Ry. Co. v. Melton, 65 S.E. 1100 (Ga. Ct. App. 1909)	1

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