Atlantic Coast Line R. Co. v. Devero

• Decision Date: 16 March 1934
• Docket Number: 23717.
• Citation: 173 S.E. 865,48 Ga.App. 800
• Parties: ATLANTIC COAST LINE R. CO. v. DEVERO.
• Court: Georgia Court of Appeals

173 S.E. 865

48 Ga.App. 800

ATLANTIC COAST LINE R. CO. v. DEVERO.

No. 23717.

Court of Appeals of Georgia, Second Division

March 16, 1934

Error from Superior Court, Bryan County; J. Saxton Daniel, Judge.

Suit by Myrtle Devero against the Atlantic Coast Line Railroad Company. To review a judgment vacating an order sustaining a demurrer to the petition, defendant brings error.

Reversed.

Abrahams Bonhan, Atkinson & Lawrence, of Savannah, for plaintiff in error.

Oliver & Oliver, of Savannah, for defendant in error.

Syllabus OPINION.

SUTTON Judge.

Plaintiff brought suit against the defendant railroad company for damages. The action was returnable to the May term, 1933, of Bryan superior court. That court has two terms a year, one beginning on the first Monday in May, and the other beginning on the first Monday in November. Ga. L. 1933, p. 1205. The defendant filed a demurrer to the plaintiff's petition. In July, 1933, the demurrer came on for a hearing. It does not appear that any order was granted during the May term of the court, giving the judge authority to pass upon the demurrer in vacation, nor does it appear that the May term of court had been extended or held open until July, 1933. The judge took the matter under advisement, and on October 14 1933, passed an order sustaining the demurrer. This order was filed with the clerk of the court. On October 20, 1933, the judge passed an order vacating and setting aside the order of October 14, and gave to the plaintiff leave to amend her petition subject to further demurrer. On November 2, 1933 the defendant moved the court to set aside the order of October 20, 1933, as improvidently granted, and the court overruled this motion. The defendant excepts to the order of the judge of October 20, 1933, vacating the order of October 14, 1933, sustaining the demurrer, and to the order of November 2, 1933, overruling its motion to set aside the order of October 20, 1933. Held:

1. A judgment sustaining a demurrer, which is rendered in vacation, without any order passed in term time setting the hearing, is void. (When there is no compliance with Code sections 4852 and 4853 as to bringing on a hearing.) Civ Code 1910, § 4854; Wright v. Broom, 43 Ga.App. 269 158 S.E. 443; Kelley v. Pafford, 31 Ga.App. 697, 121 S.E. 866; Lott v. Wood, 135 Ga. 821, 70 S.E. 661; Napier v. Heilker, 115 Ga. 168, 41 S.E. 689. The plaintiff did not except to the judgment, granted October 14, 1933, sustaining the demurrer, but made a motion to vacate and set...