Papworth v. City of Fitzgerald

• Decision Date: 06 June 1900
• Citation: 36 S.E. 311,111 Ga. 54
• Parties: PAPWORTH et al. v. CITY OF FITZGERALD.
• Court: Georgia Supreme Court

36 S.E. 311

111 Ga. 54

PAPWORTH et al. v. CITY OF FITZGERALD.

Supreme Court of Georgia

June 6, 1900

Syllabus by the Court.

1. If in rendering its judgment upon a demurrer to a petition, the court does not decide upon the merits of the case, a judgment sustaining the demurrer and dismissing the action is not a bar to another proceeding for the same cause.

2. A petition for certiorari, in which there is no attempt to assign error upon the judgment sought to be reviewed, except to allege that the "petitioners objected to the judgment of sad court, still object, and say the same was error, and as such assign it," does not comply with the statute prescribing that a plaintiff in certiorari "shall plainly and distinctly set forth the errors complained of."

3. There was in the present case no error in refusing to sanction the petition for certiorari.

Error from superior court, Irwin county; C. C. Smith, Judge.

Action by the city of Fitzgerald against Frank Papworth and others. Judgment for plaintiff. From refusal of a writ of certiorari defendants bring error. Affirmed.

E. H Williams, for plaintiffs in error.

E. W. Ryman, for defendant in error.

LEWIS J.

Proceedings were instituted in the mayor's court of the city of Fitzgerald against Papworth as principal, and certain others as securities, for the purpose of forfeiting a forthcoming bond given by him and his securities for his appearance before that court. On the trial of the case a judgment absolute was rendered by the court in favor of the city against Papworth and his securities, who, being dissatisfied with the judgment, filed a petition for certiorari to the superior court of Irwin county for the purpose of reviewing the same. This petition for certiorari the judge refused to sanction, to which ruling plaintiffs in error except.

1. It appears from the petition that a proceeding was instituted by the city of Fitzgerald against these plaintiffs in error in the county court of Irwin county on this same bond. To that suit a demurrer was filed, one ground of which was "that plaintiff's petition shows on its face that the bond herein sued on was, before the commencement of said suit forfeited in the mayor's court of the city of Fitzgerald, and that this court is without jurisdiction in the premises; jurisdiction having been previously acquired by said mayor's court." The county judge rendered the following judgment on this demurrer: "On hearing, the within demurrer is sustained for the reason set forth in paragraph two (2) of the within demurrer, to wit, the court has no jurisdiction; jurisdiction in said case having been acquired by the mayor's court, as alleged in said paragraph." In answer to the proceeding in the mayor's court, plaintiffs in error pleaded, among other things, this proceeding which was had in the county court, and the judgment of the county judge rendered thereon, sustaining the demurrer, as res adjudicata; claiming that the rights of the parties in regard to the alleged breach of the bond had, by the judgment of the county judge, been settled and determined. Civ. Code, § 3744, declares: "If upon demurrer the court has decided upon the merits of the cause, the judgment may be pleaded in bar of another suit for the same cause." Section 5095 declares: "A former recovery on grounds purely technical, and where the merits were not and could not have been in question, will not be a bar to a subsequent action brought so as to avoid the objection fatal to the first. For the former judgment to be a bar, the merits of the case must have been adjudicated." It will be seen that the judgment of the county judge was in no sense upon the merits of the case. The plaintiffs in error themselves invoked that ruling,--that the county court had no jurisdiction over the case, for the reason that...