Morgan v. The Va.

• Decision Date: 31 January 1876
• Court: Georgia Supreme Court
• Parties: Kimbro & Morgan, plaintiffs in error. v. The Virginia and Tennessee Air-Line Railway Company, defendant in error.

56 Ga. 185

Kimbro & Morgan, plaintiffs in error. v. The Virginia and Tennessee Air-Line Railway Company, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1876.)

Judgments. Demurrer. Practice in the Superior Court. Pleadings. Amendment. Statute of limitations. Before Judge Buchanan. Troup Superior Court. November Term, 1875.

Reported in the opinion.

Bigham & Whitaker; Speer & Speer, for plaintiffs inerror.

*A. W. Hammond & Son, by John L. Hopkins; B. C. Ferrell, for defendant.

Jackson, Judge.

At the November term, 1867, of the superior court for the county of Troup, the plaintiffs sued the defendant, as a common carrier, for the violation of a contract to deliver a large stock of goods at LaGrange, Georgia, from Philadelphia, where they were bought. The suit was begun by attachment, and a declaration in assumpsit was filed thereon under our statute. At the November term, 1869, the case came on for trial. It appears that some evidence was introduced by the plaintiffs, but the case went off on demurrer to the declaration, as appears from the following order passed by the court: "Upon motion of defendant's counsel ordered that this cause be dismissed upon the ground that the allegations in the petition do not make a case upon which plaintiffs can recover."

The case was brought to the supreme court and dismissed on the ground that the record and bill of exceptions were not transmitted to this court, and the judgment of the court below was affirmed. This judgment was entered on the minutes of the court below at November term, 1870. On the 5th of July, 1870, another attachment was sued out, on which another declaration, just like the first, was filed. This declaration was amended at the November term, 1872.

Defendant pleaded res adjudicate as to the declaration filed in 1870, and the statute of limitations as to the amended declaration. Plaintiffs introduced in evidence the bill of exceptions in the former case, wherein this judgment of dismissal is set out, and Kimbro, as a witness to the contract, its breach and the damages thereon. The defendant introduced no evidence.

The court charged the jury that the case had been adjudicated, as appears from the bill of exceptions, and also that if the amended declaration was filed four years after the cause ofaction accrued, then that the plaintiffs could not recover. The *jury found for the defendant; the plaintiffs moved for a new trial on the ground that the charge of the court was erroneous and the verdict against the law and the testimony; the court refused to grant the new trial, and this is the error assigned.

1. The judgment of a court upon demurrer to the declaration is a final disposition of the case. The demurrer admits all the allegations in the declaration to be true. The plaintiff can prove only the allegations which he sets out in his declaration. The demurrer, therefore, admits the whole case of the plaintiff, and makes the issue in law upon the case that, admitting it allto be just as he says, the law will not allow him to recover. A judgment rendered thereon by the court is just as conclusive as a judgment rendered by the same court on facts found by the verdict of a jury. In the one...