Macon & B. Ry. Co v. Walton

• Decision Date: 12 November 1904
• Citation: 121 Ga. 275,48 S.E. 940
• Parties: MACON & B. RY. CO. v. WALTON.
• Court: Georgia Supreme Court

48 S.E. 940

121 Ga. 275

MACON & B. RY. CO.

v.WALTON.

Supreme Court of Georgia.

Nov. 12, 1904.

JUSTICE OF THE PEACE—PLEADING—SUMMONS— APPEAL.

1. Since the passage of the act of 1881 (Civ. Code 1895, § 4116), "the plaintiff in an action in a justice's court must set forth, with some degree of certainty, his cause of action."

¶ 1. See Justices of the Peace, vol. 31, Cent. Dig § 253.

2. Whether, on appeal from a justice's court to the superior court, the defendant can then for the first time demur specially to the summons, he can at least move to dismiss on the ground that the summons sets out no cause of action.

3. The summons in the present case was insufficient, and should have been dismissed upon motion.

(Syllabus by the Court.)

Error from Superior Court, Bibb County; W. H. Felton, Jr., Judge.

Action by J. A. Walton against the Macon & Birmingham Railway Company. On appeal by defendant to the superior court from a judgment for plaintiff, the jury found for plaintiff, and defendant brings error. Reversed.

Davis & Turner, Hardeman & Jones, and E. P. Johnston, for plaintiff in error.

Birch & Dasher, for defendant in error.

SIMMONS, C. J. Suit was instituted by Walton against the Macon & Birmingham Railway Company in a justice's court. After judgment for the plaintiff the defendant entered an appeal to the superior court. Upon the call of the case in that court, and before answering or pleading to the merits, the defendant filed a demurrer to the summons. This demurrer was overruled, and the defendant excepted pendente lite. The jury found in favor of the plaintiff, and the defendant moved for a new trial. The motion was overruled, and the defendant excepted; assigning error on the refusal to grant a new trial and upon the exceptions pendente lite just referred to. There were also other exceptions, which it is unnecessary here to notice. As we hold that the court erred in overruling the demurrer, all that occurred subsequently to that ruling was nugatory, and need not now be considered

1. That since the passage of the act now embodied in Civ. Code 1895, § 4116, the summons in an action in a justice's court must set forth the cause of action with some degree of certainty, see Powell v. Alford, 113 Ga. 979, 39 S. E. 449.

2. It was argued that, as demurrers must be filed at the first term, the demurrer in the present case was too late. Plaintiff in error.on the other hand, contended that the present case did not differ in principle from that of Paxton v. Berrien County, 117 Ga. 801, 45 S. E. 266, in which it was held that on appeal the superior court may consider a demurrer which had previously been heard and overruled in a county court. This question we do not now decide. Whether or not the defendant was too late to file a special demurrer to the summons, it was at least in time to make a motion to dismiss on the ground that the summons set out no cause of action. While the paper filed was called a "demurrer, " it contained general grounds which were in the nature of a motion to dismiss, and should have been so treated by the court.

3. All suits in justices' courts must be commenced by summons to which shall be attached "a copy of the note, account or cause of action sued on." Civ. Code 1895, § 4116. The word "account, " in the Code section just cited, is used in its ordinary legal sense. Where a suit is brought in a justice's court, which is neither upon a note nor upon an account, properly so called, then there should be attached to the summons a copy of the "cause of action." In the present case the suit was not upon a note or an account, though the action was brought in the form of a suit upon an account. It is permissible to adopt this form of action, but its adoption does not relieve the plaintiff from the necessity of setting out his "cause of action" with some...