James v. Atlanta Street Railroad

16 S.E. 642, 90 Ga. 695

• Court: Supreme Court of Georgia
• Decided: January 17, 1893
• Status: Published

Opinion

Lumpkin, Justice.

Under section 3332 of the code, every declaration shall plainly, fully and distinctly set forth the cause of action, and this should be done in order that the defendant may without difficulty understand the nature of the plaintiff’s charge or demand, and make preparation to meet it. For want of sufficiency in the respects indicated, a demurrer will lie, which should be sustained unless the plaintiff’, by proper amendment, cures the defects in his declaration. Where no cause of action whatever is set forth, the defendant may move at any term to dismiss the action, because upon a declaration totally defective in substance, a motion in arrest of judgment would be good. Whenever this is true, the plaintiff’s case may be cut off summarily at any term, and thus save the unnecessary consumption of time in going through a trial which could not result in any valid judgment; but defects merely of form should be taken advantage of at the first term. Rule 28 of the superior court. Where a legal cause of action is set forth, formal defects would be cured by verdict.

We do not think the declarations in these 'two cases were sufficiently full and distinct, and the defendant undoubtedly had the right either to have them made so by amendment, or to have them dismissed, provided it had attacked them at the proper time by special demurrer. Under the principles decided by this court in the case of Ellison v. Georgia R. R. Co., 87 Ga. 691, we think either of these declarations was sufficient to withstand a general demurrer. The defendant could not, in our opinion, admit that the husband in the first case, and the wife in the second, was damaged as stated, without at the same time also admitting a substantial right of action in each. The extent of defendant’s right, so far as these pleadings are conceimed, was to have full, specific and detailed information as to the manner in which the alleged injuries were occasioned, and as to their nature and the consequences resulting from them. Not having availed itself of this right at the proper time or in the proper way, it could not subsequently dispose of the cases by mere motions to dismiss. This whole subject, in the case cited, received patient, anxious and most careful attention at the hands of the Chief Justice, who, in the writer’s opinion, fully developed and clearly announced the law applicable. For this reason it is deemed unnecessary to enter more fully into a discussion of the present eases, but our judgments in them may be safely rested upon the reasoning in that case and the authorities therein cited.

The judgments in both cases are reversed.