Atlanta & W.P.R. Co. v. Georgia Ry. & Elec. Co.
| Decision Date | 03 July 1906 |
| Citation | 54 S.E. 753,125 Ga. 798 |
| Parties | ATLANTA & W. P. R. CO. v. GEORGIA RY. & ELECTRIC CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The rule that a pleading must be taken most strongly against the pleader, where the language used is ambiguous, has no application, where the pleader confesses that the pleading is ambiguous and seeks to amend it.
The cause of action as originally set forth was subject to the construction that it was a suit for a penalty, but this construction was removed by the amendment.
As the effect of the amendment was to reduce the amount claimed below the sum which would authorize an appeal to the superior court, there was no error in dismissing the appeal.
Error from Superior Court, Fulton County; J. L. Pendleton, Judge.
Action by the Georgia Railway & Electric Company against the Atlanta & West Point Railroad Company. From a judgment in favor of plaintiff, defendant brings error. Affirmed.
Lamar Rucker, for plaintiff in error.
Rosser & Brandon, W. L. Colquilt, and Ben. J. Conyers, for defendant in error.
COBB P.J. (after stating the foregoing facts).
While the law does not require that a pleader in a justice's court shall set forth his cause of action with all that formality which is required in courts of record, what is required to be set forth is subject to the rule that pleadings are to be taken most strongly against the pleader. The pleader in the justice's court must avoid expressions which are equivocal and terms which are ambiguous, or pay the penalty resulting from the use of such language. Applying this rule, the cause of action alleged was certainly equivocal in its terms. It can be construed either as a suit for a penalty under the statute, or a suit for the overcharge as such and a separate count for a penalty. If the pleader had seen fit to stand upon this cause of action as originally drawn, no other course would have been open to the court than a dismissal of his case as a penalty for not stating in clear and unambiguous terms what was the subject-matter of his claim. But he did not stand upon it. He resorted to the right of amendment in order to relieve the pleading from the ambiguity apparent in it. As it originally stood it was open to a double construction. The penalty for the use of such language would have been a dismissal, if the most unfavorable construction would have ousted the jurisdiction of the court. See, in this connection, Holbrook v. Norcross, 121 Ga. 319, 48 S.E. 922; Mayor and Council of Eastman v Cameron, 111 Ga. 110, 36 S.E. 462. The appellant however, admits the fault and seeks to remedy it by amendment. That is, he said in effect, "I was not clear in the...
To continue reading
Request your trial