Central of Georgia Railway Co. v. Jones

101 S.E. 710, 24 Ga. App. 532, 1919 Ga. App. LEXIS 902

• Court: Court of Appeals of Georgia
• Decided: December 9, 1919
• Docket: 10644
• Status: Published

Opinion

Broyles, C. J.

1. A general demurrer to a petition is equivalent to a motion to dismiss the petition, and where such a demurrer is filed after the allowance of an amendment to the petition, the sole question raised by the demurrer is as to the sufficiency of the petition as amended. The right so to amend is not thereby questioned. O’Shields v. Ga. Pac. Ry. Co., 83 Ga. 621 (10 S. E. 268, 6 L. R. A. 152).

2. A general demurrer to the entire petition after it has been amended is properly overruled if any count of the petition sets out a cause of action. Hay v. Collins, 118 Ga. 243 (44 S. E. 1002); Hudson v. Hudson, 119 Ga. 637 (46 S. E. 874).

3. Whether the instant case was an action under the State law or under the Federal “employer’s liability act,” it did not abate upon the death of the plaintiff, but survived to his personal representative.

(a) Under the State law it did not abate. Civil Code (1910), §§ 4421, 5617.

(5) Under the Federal “employer’s liability act” as amended April 5, 1910, it did not abate. 36 Stat. 291 (8 Fed. Stat. Ann. (2d ed.) 1378, U. S. Comp. St. § 8665); U. S. Rev. Stat. § 955 (6 Fed. Stat. Ann. (2d ed.) Ill, and cases cited, U. S. Comp. St. § 1592).

4. Under the above rulings and the pleadings in the instant case the court did not err in overruling the general demurrer to the amended petition.

Judgment affirmed.

Luke and Bloodworth, J.J., concur.