Flint River & Northeastern Railroad v. Sanders

90 S.E. 655, 18 Ga. App. 766, 1916 Ga. App. LEXIS 1254

• Court: Court of Appeals of Georgia
• Decided: November 16, 1916
• Docket: 7387
• Status: Published

Opinion

Broyles, <1.

1. Special defects or omissions in the petition may always be taken advantage of by demurrer; and unless cured by amendment, the petition should be dismissed. Park’s Ann. Code, § 5631.

(a) All necessary jurisdictional facts must be alleged in the plaintiff’s petition, and the absence of any of them can be taken advantage of by demurrer. White v. Atlanta, Birmingham & Atlantic Railroad Co., 5 Ga. App. 308 (63 S. E. 234).

2. “All railroad companies shall be sued in the county in which the cause of action originated, by any' one whose person or property has been injured by such railroad company, . . for the purpose of recovering damages for such injuries,” where the railroad company has an agent in that county. Park’s Ann. Code, § 2798.

3. In this case suit was brought in the city court of Camilla, Mitchell county, against a railroad company, for alleged injuries to the person of the plaintiff. She averred in her petition that the defendant had an agent in the county where the suit was brought, but failed to allege that the injuries sued for were inflicted in that county. The petition, therefore, failed to show that the court had jurisdiction to try the case, and the demurrer to the jurisdiction of the court should have been sustained. Coney v. Horne, 93 Ga. 723 (3), 726 (20 S. E. 213); Gilbert v. Georgia Railroad & Banking Co., 104 Ga. 412 (30 S. E. 673); Jordan v. Georgia Southern & Florida Railroad Co., 105 Ga. 274 (30 S. E. 748); Savannah, Florida & Western Ry. Co. v. Tony, 108 Ga. 753 (32 S. E. 878).

4. The omission to state in the petition all facts necessary to give the court jurisdiction of the case is amendable. Park’s Ann. Code, § 5691. For the reason given in the preceding paragraph, the judgment overruling the demurrer to the jurisdiction of the court is reversed, but with leave for the plaintiff below to amend her petition before the remittitur from this court is entered upon the minutes of the court below, so that it shall appear therefrom that the injuries sued for were inflicted in Mitchell county.

Decided November 16, 1916.

Action for damages; from city court of Camilla — Judge Bush. March 4, 1916.

J. J. Hill, for plaintiff in error. Haggard & Collins, Johnson & Warren, contra.

5. The error in overruling the demurrer rendered the further proceedings in the ease nugatory, and it is unnecessary to discuss the other assignments of error. Judgment reversed, with direction.