Hudgins Contracting Co v. Redmond

• Decision Date: 18 January 1934
• Docket Number: No. 9501.,9501.
• Citation: 178 Ga. 317,173 S.E. 135
• Parties: HUDGINS CONTRACTING CO. et al. v. REDMOND et al.
• Court: Georgia Supreme Court

178 Ga. 317

173 S.E. 135

HUDGINS CONTRACTING CO. et al.

v.REDMOND et al.

No. 9501.

Supreme Court of Georgia.

Jan. 18, 1934.

Rehearing Denied March 1, 1934.

Syllabus by Editorial Staff.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Suit by W. J. Redmond and others against the Hudgins Contracting Company and others, wherein defendants filed a cross-action. To review the judgment, after their motion for new trial was overruled, defendants bring error.

Affirmed.

Carl T. Hudgins, of Decatur, for plaintiffs in error.

Noah J. Stone, of Atlanta, for defendants in error.

Syllabus Opinion by the Court.

RUSSELL, Chief Justice.

1. "If a defendant appear and plead to the merits, without pleading to the jurisdiction, and without excepting thereto, he thereby admits the jurisdiction of the court." Civ. Code 1910, § 5664. A mere reference to the defendant's right to demur or to plead to the jurisdiction at a later stage of the case is not a sufficient substitute for the filing of a demurrer for testing the jurisdiction of the court and properly raising the point that the court is without jurisdiction, either before filing a plea to the merits or concurrently therewith. And the same rule applies to a plea to the jurisdiction. In this case the suit was filed May 3, 1932. On the same day the defendant filled an answer praying for affirmative equitable relief, for appointment of a receiver, and for a money judgment against the plaintiff. No demurrer based upon a lack of jurisdiction of the court, and no plea to the jurisdiction, had been filed at the time that the defendant filed its cross-action. Consequently the filing of a demurrer on May 26, 1932, and of a plea to the ju-risdiction on June 15, 1932, were both too late. The defendant had already voluntarily submitted itself to the jurisdiction of a court which had jurisdiction of the subject-matter of the cause. Consequently the court did not err in thereafter striking the plea to the jurisdiction, or in overruling any and all demurrers based upon the ground that the court was without jurisdiction. The court of equity, having properly assumed jurisdiction by the voluntary submission of the defendant, which by its answer and cross-action had itself become a plaintiff, was clothed with jurisdiction to finally adjudicate all issues thereafter arising, in accordance with the principles of justice and equity.

{2] 2. A petition brought in the trade-name of an individual may be amended by stating the real or true name of the person who purports to carry on the business to which the allegations of the petition relate; and the amendment does not state a new cause of action, or introduce a new party. Civ. Code 1910, § 56S6; Charles v. Valdosta Foundry & Machine Co., 4 Ga. App. 733, 62 S. E. 493; Clark v. Wyche, 126 Ga. 24, 54 S. E. 909; Worth v. United Electric Supply Co., 42 Ga. App. 702, 157 S. E. 246.

3. The court did not err in overruling the motion to continue. Aside from other defects in the character and contents of the motion, to which present reference need not be made, the defendant was not harmed; and the court did not err in holding that the defendant did not have to depend upon the estimate of the government or its contractor for proof of the yardage of dirt removed by

either of the parties in the cause, and it was in the power of the defendant to ascertain and establish the actual yardage by a witness or witnesses within the jurisdiction of the court.

4. If for any reason the court erred in overruling the defendant's demurrer filed on June 22, 1932, to the amendment offered by the plaintiff to the original petition, a careful review of the entire record in this case clearly shows that the error was harmless, for the error was cured by the court in its charge to the jury restricting...