City Of Atlanta v. Harris

• Decision Date: 28 October 1935
• Docket Number: No. 24993.,24993.
• Citation: City Of Atlanta v. Harris, 52 Ga.App. 56, 182 S.E. 202 (Ga. App. 1935)
• Parties: CITY OF ATLANTA. v. HARRIS.
• Court: Georgia Court of Appeals

52 Ga.App. 56

182 S.E. 202

CITY OF ATLANTA.

v.HARRIS.

No. 24993.

Court of Appeals of Georgia, Division No. 2.

Oct. 28, 1935.

Syllabus by Editorial Staff.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Petition by Mrs. C. F. Harris against the City of Atlanta. To review a judgment overruling a general demurrer to the petition, defendant brings error.

Affirmed.

J. C. Savage, C. S. Winn, and Bond Almand, all of Atlanta, for plaintiff in error.

G. Seals Aiken, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

SUTTON, Judge.

Plaintiff tripped on a wire of the Georgia Power Company, fell, and was injured. The wire extended down into a public sidewalk in the city of Atlanta and was firmly attached, projecting about a foot out of the sidewalk and being bent over a few inches above it. Plaintiff notified the city of her accident and injury by filing a written claim. She originally claimed damages of the city and of the power company as joint tort-feasors, and instituted her suit against both defendants.

Thereafter, she amended her petition by striking the Georgia Power Company, as a defendant, and then proceeded against the city of Atlanta alone. The city demurred generally to plaintiff's petition, as thus amended, on various grounds, which will be dealt with in the syllabus opinion following this summary of the proceedings in this case. The trial judge overruled the demurrer on each ground thereof, and to this judgment the city excepts. The defendant in error moves to dismiss the bill of exceptions, which motion will be disposed of in the first division of this opinion. Held:

1. Where the defendant in the trial court interposes demurrers to the petition, which, if sustained, would result in a dismissal of the case and its final termination in favor of defendant, but which the trial judge overrules, the defendant may except either pendente lite and proceed with the trial of the case, or he may except directly and sue out a writ of error to the appellate court, obtaining the necessary supersedeas if he desires to preserve the status pending the disposition of his case in the appellate court. A bill of exceptions assigning error on a judgment overruling a general demurrer to the petition is not subject to dismissal in the appellate court as being prematurely sued out and as not excepting to a final judgment, for the reason that the case is not finally disposed of, but is still pending below. Code 1933, § 6-701; Ramey v. O'Byrne, 121 Ga. 516 (3), 49 S. E. 595; Newton v. Roberts, 163 Ga. 135, 135 S. E. 505; Ray v. Hicks, 146 Ga. 685, 92 S. E. 48; Durrence v. Waters, 140 Ga. 762, 79 S. E. 841; City Council of Augusta v. Lombard, 86 Ga. 165, 12 S. E. 212; Bivins v. Tucker, 41 Ga. App. 771, 773, 154 S. E. 820.

(a) A motion to dismiss is not the proper remedy to compel compliance with the provisions of section 6-801, subd. 1, of the Code, that the bill of exceptions shall specify such portions of the record as are material and necessary to a clear understanding of the errors complained of. Holmes & Co. v. Pope & Fleming, 1 Ga. App. 338, 58 S. E. 281; Southern Mining Co. v. Brown, 107 Ga. 264, 33 S. E. 73; Atlanta Suburban Land Corporation v. Austin, 122 Ga. 374, 50 S. E. 124; Beas-ley v. Howard, 34 Ga. App. 102, 128 S. E. 203; City of East Point v. Christian, 40 Ga. App. 633, 151 S. E. 42.

(b) It follows that the motion to dismiss the bill of exceptions is without merit and must be denied.

2. When two or more persons are sued in the same action either on a contract or for a tort, the plaintiff may amend his petition by striking one or more of such defendants and proceed against the remaining defendant or defendants, if there be no other legal difficulty in the case. Code 1933, § 81-1306.

(a) Joint tort-feasors may be sued jointly or severally. Persons guilty of separate acts of negligence which jointly and concurrently co-operate in causing an injury, are joint tort-feasors, and may be sued as such. Akin v. Brantley, 26 Ga. App. 326, 106 S. E. 214; Mashburn & Co. v. Dannenberg Co., 117 Ga. 567, 44 S. E. 97. Plaintiff may sue one or all of such joint tort-feasors, and where she sues all she may dismiss as to one defendant without affecting her rights as to-the other defendant. Wall v. Wall. 176 Ga. 757 (1). 759, et seq., 168 S. E. 893.

3. The notice given by the plaintiff to the city in this case was sufficient. City of Rome v. Stone, 46 Ga. App. 259 (1), 167 S.-E. 325. It is true that the petition on which the plaintiff...