Kahn v. Southern Building & Loan Ass'n

41 S.E. 648, 115 Ga. 459, 1902 Ga. LEXIS 449

• Court: Supreme Court of Georgia
• Decided: April 30, 1902
• Status: Published

Opinion

Simmons, C. J.

1. A plea to the jurisdiction must not only show that the court assuming jurisdiction has none, but must allege that another court in this State has jurisdiction. Civil Code, §5082.

2. The defendant in an action has a right to file a traverse to the return of service of the sheriff or other officer at the first term after learning of the return ; and this is true whether the case is marked in default or not. This rule is not changed by anything in the act of 1900, amending the act establishing the city court of Macon.

3. A plea to the merits which expressly avers that it is filed subject to the plea to the jurisdiction and the traverse of the return of service already filed does not admit jurisdiction or waive the traverse. Cox v. Potts, 67 Ga. 521.

4. The plaintiff’s action having been founded upon a conditional contract, and the petition alleging in different paragraphs material facts which plaintiff had to prove in order to recover, a plea denying the truth of such material allegations, paragraph by paragraph, constituted a meritorious defense and should not have been stricken on demurrer. DeSoto Plantation Co. v. Hammett, 111 Ga. 24.

6. Where a default is opened upon condition that the defendant instanter file a meritorious defense, and such defense is so filed, it is error to strike the answer and try the case as still in default.

Judgment reversed.

All the Justices concurring, except Lewis, J., absent.