Cox v. W. T. Adams & Co

• Decision Date: 08 December 1908
• Docket Number: (No. 1,409.)
• Citation: 63 S.E. 60,5 Ga.App. 296
• Court: Georgia Court of Appeals
• Parties: COX . v. W. T. ADAMS & CO.

63 S.E. 60

(5 Ga.App. 296)

COX .

v.W. T. ADAMS & CO.

(No. 1, 409.)

Court of Appeals of Georgia.

Dec. 8, 1908.

I. Parent and Child (§ 5^*) — Right to Child's Earnings.

A parent, who has not released his riglit to the earnings of his minor children, may maintain a laborer's lien in his own name and right for their labor, and may in a single foreclosure prosecute for their wages and his own, if all the wages are due by the same person, firm, or corporation. McElmurray v. Turner, 80 Ga. 215 (3), 12 S. E. 359.

[Ed. Note.—For other cases, see Parent and Child. Cent. Dig. § 70; Dec. Dig. § 5.*]

2. Pleading (§ 93*)—Courts (§ 37*)—Inconsistent Defenses—Objections to Jurisdiction.

The defendant may simultaneously file demurrer, answer, dilatory pleas, and pleas to the merits, without thereby waiving any of them. Civ. Code 1895. § 5047; Stallings v. Stallinss, 127 Ga. 464 (6), 56 S. E. 469. 9 L. R. A. (N. S.) 593; W. & A. R. Co. v. Pitts, 79 Ga 532, 4 S. E. 921. But if the defendant pleads to the merits, without protestation as to the jurisdiction or without simultaneously pleading as to it, jurisdiction of the person is waived, and a plea to the jurisdiction should not thereafter be considered. Civ. Code 1895, § 5080; Bell v. New Orleans & N. E. R. Co., 2 Ga. App. 820, 59 S. E. 102.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 189; Dec. Dig. § 93;* Courts, Cent. Dig. §§ 147-151; Dec. Dig. § 37;* Abatement and Revival, Cent. Dig. §§ 9, 10, 19.]

(Syllabus by the Court.)

Error from Superior Court, Morgan County; H. T. Lewis, Judge.

Action by J. M. Cox against W. T. Adams & Co. to enforce a laborer's lien. Judgment for plaintiff in the justice's court was reversed on certiorari, and plaintiff brings error. Reversed.

On March 14th Cox sued out a laborer's lien against Adams & Co. for the labor of himself and two minor sons, and the suit was made returnable to the April term of a certain justice's court in Morgan county. It was levied April 1st. The defendants then filed a counteraffidavit, denying indebtedness; also demurrers, general and special. Subsequently at the trial term of the court they moved to dismiss the foreclosure on the ground that the father could not maintain a lien for his minor sons' wages, and that he had improperly joined a claim for their wages in the same foreclosure with a claim for his own. The justice overruled the objection. The defendant, after having pleaded to the merits, offered at the trial a plea to the jurisdiction, alleging that both the defendants resided in Fulton county. The justice rejected the plea on the ground that the right to question the jurisdiction had been waived. The evidence as to the plaintiff's right to recover was conflicting, but the jury found in his favor. The defendants carried the case to the superior court by certiorari. In that court the judge disposed of the case by the following order: "Upon hearing the within certiorari, it is sustained, and the case remanded for a new hearing, upon the ground that the court erred in not allowing the defendant to plead to the jurisdiction of the...