Southern Ry. Co. v. Town of Temple
| Decision Date | 14 April 1953 |
| Docket Number | No. 18153,18153 |
| Citation | 209 Ga. 722,75 S.E.2d 554 |
| Parties | SOUTHERN RY. CO. v. TOWN OF TEMPLE et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The judgment of the court below sustaining a general demurrer to the petition without a hearing was error.
2. There is no merit in these grounds of the special demurrer.
3. Ground seven of the special demurrer should have been sustained.
On October 16, 1952, Southern Railway Company filed and served its petition against the Town of Temple, W. L. Steadman, Jr., as mayor of said town, certain named persons as councilmen of said town, and Mrs. E. S. West, as clerk of the council of said town, seeking to enjoin the defendants from proceeding with certain plans for grading and surfacing certain streets adjacent to the petitioner's right of way, and from assessing to the petitioner its share of the cost of such work in the manner and in the amount which the defendants have undertaken to do, and from certain other acts in connection with the above. Thereafter, the defendants filed their answer to the petition and, within the time provided by law, the petitioner filed special demurrers to the answer, and on January 5, 1953, one ground of the special demurrer was sustained and all others overruled. To this judgment, it excepted.
On the same day, the case came on for a hearing for temporary injunction, and after both sides had presented their evidence, the judge reserved his decision and granted leave to all parties to submit a brief of authorities on or before January 12, 1953. On January 9, 1953, the petitioner tendered to the judge an amendment to its petition which was allowed, subject to demurrer. On January 12, 1953, the Town of Temple et al. filed and served its general demurrer to the petition as amended. On January 17, 1953, without a hearing, the judge of the court below sustained the general demurrer to the petition as amended and dismissed the petition. To this judgment the petitioner excepted. The exceptions here are to the overruling of certain grounds of the special demurrer to the answer and to the judgment sustaining the general demurrer and dismissing the petition.
Matthews, Maddox & Bell, Rome, for plaintiff in error.
Boykin & Boykin, Shirley C. Boykin, Carrollton, and Marshall L. Allison, Lavonia, for defendants in error.
1. It is contended that the judgment of the court below sustaining the general demurrer and dismissing the petition without a hearing was error. Code (Ann.) § 81-1001 provides in part as follows: It will be noted that this Code section provides that the 'judge shall hear and determine' all objections to the sufficiency of the pleadings. It is made mandatory that the judge give the parties an opportunity to be heard.
Furthermore, it is fundamental in our law that no one shall be deprived of his life, liberty, or property without due process...
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...affecting one's life, liberty, or property is one of the essential elements of due process of law." Southern Ry. Co. v. Town of Temple, 209 Ga. 722, 724, 75 S.E.2d 554, 555 (1953). In Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), the U. S. Supreme Court held that......
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