Paxton v. Berrien County

• Decision Date: 29 June 1903
• Citation: 45 S.E. 266,117 Ga. 891
• Parties: PAXTON. v. BERRIEN COUNTY et al.
• Court: Georgia Supreme Court

45 S.E. 266

117 Ga. 891

PAXTON.

v.BERRIEN COUNTY et al.

Supreme Court of Georgia.

June 29, 1903.

EXCEPTIONS PENDENTE LITE—APPEAL FROM COUNTY COURT—BRIDGE—REPAIR —BOND—PLEADING.

1. There is no provision of law for exceptions pendente lite in the county court.

2. An appeal being a de novo investigation, j the superior court may hear and sustain a demurrer which has been previously heard and overruled in the county court.

3. Where a bond was given at the time of the original construction of a bridge over a stream between two counties, the law did not require a bond for the repair of such bridge when the cost of the repairs is less than $500.

4. A petition will be most strongly construed against the pleader, and where it is doubtful whether he charges that a bridge was "repaired" or "rebuilt, " and fails to show that the cost thereof was $500 or more, he sets out no cause of action against the county for injuries caused by defects in the bridge arising since the alleged "repair" or "reconstruction.'

(Syllabus by the Court.)

Error from Superior Court, Berrien County; P. E. Seabrook, Judge.

Action by C. D. Paxton against Berrien county and others. Judgment for defendants, and plaintiff brings error. Affirmed.

H. B. Peeples and Hendricks & Harrison, for plaintiff in error.

W. D. Buie and Pear-sail & Shipp, for defendants in error.

LAMAR, J. The proviso contained in Pol. Code 1895, § 603, making counties "primarily liable for all injuries caused by reason of any defective bridge, whether erected by contractors or county authorities, " does not apply to bridges built across streams between counties. Pol. Code 1895, §§ 367-371; Willingham v. Elbert County, 113 Ga. 15, 38 S. E. 348. The law does not require a bond to be given where a bridge over a stream between counties is repaired, if the cost thereof is less than $500. Pol. Code 1895, § 370. The petition alleged that the bridge was constructed over the boundary stream, and a bond given; that at the expiration of seven years the counties, finding the bridge in need of repairs, employed a contractor to do the work at a cost of $90, but took no bond. By amendment it was alleged that the county authorities "reconstructed a public bridge over and across Little river, a watercourse dividing the counties of Berrien and Colquitt, being the repairing of the said original bridge referred to in plaintiff's petition, and for which they took no bond, as required by law."

Pleadings are to be construed most strongly against the...