Atlanta, Knoxville & Northern Railway Co. v. Shippen

55 S.E. 1031, 126 Ga. 784, 1906 Ga. LEXIS 543

Opinion

Cobb, P. J.

-(After stating the foregoing facts.) If the summons be considered alone, the suit was simply for an overcharge. If the . account attached be considered alone, it is doubtful whether it constitutes a claim for an overcharge and a penalty, or a claim merely for a penalty. The affidavit to the account indicates an intention' to claim a penalty only, as indicated by the amount referred to in the affidavit, taken in connection with the item in the account. When the summons, the account, and the affidavit are all taken together, it is doubtful what is the character of the claim sought to be recovered. It might be construed to be a claim for an overcharge. It might be construed to be a claim for a penalty. It is possible to construe it as a claim for a penalty and an.overcharge. In other words, that which constitutes the pleadings in this case is doubtful and equivocal. The rule that a pleading is construed most strongly against the pleader is applicable to that which takes the place of pleading in a justice’s court. The penalty for the use of equivocal language is to be imposed in that court, as well as any other court; and the penalty for the use of such equivocal language is a dismissal, if the most unfavorable construction would oust the court of jurisdiction. Atla. & West Pt. R. Co. v. Ga. Ry. & Elec. Co., 125 Ga. 798. In the case just cited the plaintiff saved his case by amendment, which removed the ambiguity. There was no amendment in this ease, and the penalty for equivocal language should have been imposed and the case dismissed.

Judgment reversed.

All the Justices concur.