Nalley & Co. v. Moore
| Decision Date | 26 July 1935 |
| Docket Number | 24570. |
| Parties | NALLEY & CO. v. MOORE et al. |
| Court | Georgia Court of Appeals |
Rehearing Denied Sept. 6, 1935.
Syllabus by Editorial Staff.
Petition for certiorari from final judgment of Buford city court may assign error on overruling of general demurrer to petition and on denial of motion to dismiss for failure to show jurisdiction, without necessity of exceptions pendente lite to such preliminary rulings (Acts 1906, p. 176).
Certiorari does not lie until after final determination of case, even though previous ruling upon demurrer or motion involves question of jurisdiction to entertain case (Code 1933, § 19-209).
Where writ of error is brought to Court of Appeals after final judgment, and more than statutory time for writ has elapsed after previous decision on demurrer or motion, rights of exception thereto must be preserved by timely exceptions pendente lite (Code 1933, §§ 6-701, 6-902, 6-905, 6-1305).
Petition that does not show facts essential to give court jurisdiction is subject to general demurrer.
Introductory paragraph in body of petition itself is not part of "caption" or ""title," and is available, as against general demurrer, to show jurisdiction.
The "caption" or "title" of a pleading is the heading or introductory clause showing the names of the parties, the name of the court, the county where the action is brought, and usually the term of the court and the number of the case on the docket or calendar.
Fraud ordinarily gives injured party option to rescind contract induced thereby, or, by affirming contract, to claim damages as compensation (Code 1933, § 20-502).
Where sale contract is induced by fraud, title does not pass, and contract may be rescinded, regardless of form of, or limitation in, warranty, whereas breach of warranty does not affect title, and purchaser is relegated to claim for damages (Code 1933, § 20-502).
In buyer's suit against seller for damages from fraudulent representations as to condition of automobile, testimony as to actual fraud inducing contract was admissible and authorized verdict for buyer, although conditional sales contract provided that seller made no warranty save warranty of title, and that buyer agreed that all inducements and agreements and representations were merged into contract, and that there were no representations, warranties, or agreements touching contract not contained therein.
On Motion for Rehearing.
Domestic corporation may be sued in tort in county where cause of action originated, provided corporation has agent, agency, or place of business in such county (Code 1933, § 22-1102; Const. art. 6, § 16, par. 6).
Petition in tort against domestic corporation for damages resulting from fraudulent representations held to sufficiently show venue as against general demurrer, although alleging in introductory paragraph that corporation had its principal office and place of business in another county, where body of petition expressly alleged that corporation had "an office and place of business" within territorial jurisdiction of trial court, and "then and there" made representations in question (Code 1933, § 22-1102; Const. art. 6, § 16, par. 6).
Words "then and there" generally refer to the time and place last specified, unless some phrase is used in connection therewith which shows that a different reference was intended, and it was manifest that "then and there," as it appeared in petition, related solely to the alleged location of the office and place of business within the territorial jurisdiction of the trial court.
Error from Superior Court, Gwinnett County; W. W. Stark, Judge.
Suit by W. F. Moore and another against C. V. Nalley & Company. Judgment for plaintiffs, defendant's petition for certiorari was overruled by the superior court, and defendant brings error.
Affirmed.
Boyd Sloan and Sam S. Harben, both of Gainesville, for plaintiff in error.
A. G Liles, of Buford, and W. L. Nix, of Lawrenceville, for defendants in error.
Syllabus OPINION.
1. In a petition for certiorari from a final judgment in the city court of Buford to the superior court of the county, error may be assigned by a defendant on the overruling of a general demurrer to the petition and the denial of a motion to dismiss for alleged failure to show jurisdiction, without the necessity of exceptions pendente lite to such preliminary rulings. Certiorari does not lie until "after the final determination of the case in which the error is alleged to have been committed" (Code 1933, § 19-209), even though a previous ruling upon demurrer or motion may involve "the question of jurisdiction to entertain the case." Everidge v. Berrys, 93 Ga. 760, 20 S.E. 644; Johnson v. Barrett, 26 Ga.App. 781 (1), 107 S.E. 168. Where a writ of error is brought to this court after a final judgment, and more than the statutory time for such writ has elapsed after a previous decision on demurrer or motion, rights of exception thereto must be preserved by timely exceptions pendente lite; but under the statute (Acts 1906 p. 176) establishing the city court of Buford, such exceptions are neither necessary nor appropriate where the final judgment and preliminary rulings of the court are reviewed by certiorari. Code 1933, §§ 6-701, 6-902, 6-905, 6-1305; Paxton v. Berrien County, 117 Ga. 891 (1), 892, 45 S.E. 266; Walker v. Cliff Drug Co., 23 Ga.App. 722, 99 S.E. 392.
2. A petition that does not show the essential facts necessary to give the court jurisdiction is subject to general demurrer. Atlanta Accident Ass'n v. Bragg, 102 Ga. 748, 750, 29 S.E. 706. The caption or title of a pleading is the heading or introductory clause showing the names of the parties, the name of the court, the county where the action is brought, and usually the term of the court and the number of the case on the docket or calendar. But the introductory paragraph in the body of the petition itself is not a part of the caption or title. See 1 Bouv. Law Dict. (Rawle's 3d Rev.) 794. Whether or not, therefore, a "caption" is to be deemed part of a petition, in the absence of an express reference thereto in the body of the pleading, so that a statement of jurisdiction or venue in the caption alone would be sufficient to withstand a general demurrer (see St. Louis Lightning Rod Co. v. Johnson, 18 Ga.App. 190-192, 89 S.E. 169; Jackson v. Ashton, 8 Pet. 148, 8 L.Ed. 898; 49 C.J. 116, 130, 131; Black's Law Dict.), need not be determined in the instant case, since the essential allegations of jurisdiction sufficiently appear in the introductory paragraph and the numbered first paragraph in the body of the petition, and the contention that these allegations appear only in the "caption" is not supported by the pleading.
3. "Fraud renders contracts voidable at the election of the injured party." Code 1933, § 20-502. It "ordinarily gives the injured party an option either to rescind the contract so induced, or, by affirming the same, to claim damages as compensation." Barfield v. Farkas, 40 Ga.App. 559 (2), 150 S.E. 600, 601. Dove v. Roberts & Co., 50 Ga.App. 321, 178 S.E. 169 and citations. In a suit by purchasers of an automobile for the recovery from the seller of damages sustained from alleged false and fraudulent representations by the seller's agent as to the mechanical condition of the car, the testimony of the plaintiffs as to such actual fraud inducing the contract was admissible, and a verdict in their favor under this evidence, although controverted, was authorized, although the conditional sale contract contained the provisions: See Summerour v. Pappa, 119 Ga. 1 (5), 6, 45 S.E. 713; Schofield v. Burns, 178 Ga. 186, 188 (2), 172 S.E. 569; Dunn v. Citizens' & Southern Co., 47 Ga.App. 600, 171 S.E. 170; Edge v. Allertox, Inc., 47 Ga.App. 598 (2-4), 171 S.E. 181; Snellgrove v. Dingelhoef, 25 Ga.App. 334, 103 S.E. 418; Dove v. Roberts & Co., and Barfield v. Farkas, supra.
4. Under the preceding rulings, the superior court did not err in overruling the defendant's petition for certiorari.
Judgment affirmed.
On Motion for Rehearing.
The motion for rehearing presents no contention not already fully considered, except the question whether the petition alleged venue of the trial city court over the defendant corporation sufficiently to withstand the...
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