Smith v. Cent. Of Ga. Ry. Co

• Decision Date: 20 October 1916
• Docket Number: (No. 44.)
• Citation: 90 S.E. 474,146 Ga. 59
• Parties: SMITH. v. CENTRAL OF GEORGIA RY. CO.
• Court: Georgia Supreme Court

(146 Ga. 59)

90 S.E. 474

SMITH.

v.CENTRAL OF GEORGIA RY. CO.

(No. 44.)

Supreme Court of Georgia.

Oct. 20, 1916.

(Syllabus by the Court.)

Fish, C. J., and Atkinson, J., dissenting.

Error from Superior Court, Talbot County; S. P. Gilbert, Judge.

Action by T. F. Smith against the Central of Georgia Railway Company. The petition was dismissed, and plaintiff brings error. Reversed and remanded.

J. J. Bull & Son, of Oglethorpe, for plaintiff in error.

Battle & Hollis, of Columbus, and John H. McGehee, of Talbotton, for defendant in error.

HILL, J. [1, 2] Tennie F. Smith brought suit against the Central of Georgia Railway Company, to recover damages for permanent injury to her land alleged to have been caused by certain obstructions placed in a stream in 1904 and 1909. The defendant demurred to the petition, because "it affirmatively appears from the allegations in the petition that the plaintiff cannot legally enforce her claim for damages against this defendant." The court sustained the demurrer, in an order wherein it is ruled and stated that "the general demurrer to said petition be and the same is hereby sustained, and said petition dismissed, it appearing from the face of the petition that the cause of action is barred by the statute of limitations, " in that more than four years had elapsed since the alleged permanent damage had accrued. To this judgment the plaintiff excepted, one of the grounds of exception being that the demurrer did not "allege that the action was barred by the statute of limitations." We think the court erred in sustaining the demurrer on the ground that the petition was barred by the statute of limitations. Where on its face the.petition shows that the suit is barred by the statute of limitations, the defense provided for by the statute can be invoked by demurrer, or by oral motion to dismiss at the trial term. Curtis v. College Park Lumber Co., 145 Ga. 601, 89 S. E. 680. But it must be done expressly, and cannot be taken advantage of by a mere general demurrer. 25 Cyc. 1400(6). As a general rule, the defense afforded by the statute of limitations must be pleaded, but, as above indicated, may be set up by demurrer when the bar of the statute is apparent from the face of the petition. In the present case the demurrer does not allude to the statute; and as the presiding judge based his order dismissing the case upon the application of the statute of limitations, which defense we have held not to have been raised by the demurrer, the...