Hendry v. Smith

28 Ga. 308

• Court: Supreme Court of Georgia
• Decided: May 15, 1859
• Status: Published

Opinion

By the Court.

McDonald, J.,

delivering the opinion.

There was evidence on both sides of the issue submitted to the jury, and that leaves no doubt on the mind that at the time of the service of the declaration and process on the defendant, and at the time of the plea pleaded he was resident in the county of Thomas, where the suit was instituted. The suit was in the superior court, and the plea should have shown that there was another court where justice could be effectually administered, and, of course, it must appear what court it was which had the jurisdiction at the time of the plea pleaded, for if, at that time, thej identical court in which. the suit was pending has the jurisdiction, the court will not turn a plaintiff out merely to institute suit in the same court. On an issue of this sort, the time at which the declaration was filed in the clerk’s office is of little importance. The act of 1843, defining the time at which an action should be held to be commenced, grew out of a contrariety of decisions in the courts, at the point of time at which the suit should have effect upon a plea of the statute of limitations. But considering the nature of a plea in abatement to the jurisdiction of the court, and the object of it, simply to carry the case before the court, whei’ethe cause can be properly tried, which court must be shown in the plea, that the parties may institute the suit there, it is immaterial when the declaration was filed. But there is a conflict in the evidence, as to the l’esidence of the defendant in the case below, when the declaration was filed; and the jury having found that his residence was-in the jurisdiction in which the action was brought, the presiding judge, in that court did right not to disturb the verdict.

Judgment affirmed.