Kidd v. Holtzendorf

Court of Appeals of Georgia

Kidd v. Holtzendorf

76 S.E.2d 656, 88 Ga. App. 360, 1953 Ga. App. LEXIS 1089

CourtCourt of Appeals of Georgia

DecidedJune 10, 1953

Docket34622

StatusPublished

Cited by3 cases

This text of 76 S.E.2d 656 (Kidd v. Holtzendorf) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kidd v. Holtzendorf, 76 S.E.2d 656, 88 Ga. App. 360, 1953 Ga. App. LEXIS 1089 (Ga. Ct. App. 1953).

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Opinion

Gardner, P. J.

We will not here discuss or go into the question that the motion of the defendant to dismiss the plaintiff’s petition was not filed in time. So far as this case is concerned, any discussion of that point is beside the question to be determined here. We have set out the allegations of the petition in [364]*364full, and have set out the allegations of the answer substantially. The court correctly refused to dismiss the petition of the plaintiff on the motion of the defendant. The defendant cites in support of the motion to dismiss the petition, Martin v. Ball, 30 Ga. App. 729 (119 S. E. 222), and Herrington v. Spell, 48 Ga. App. 802 (173 S. E. 870). A casual reading of the cases will disclose that neither of them approaches any similarity to the allegations of the petition now before us. We deem it useless to discuss them. The law governing the situation made by the allegations of the instant petition is succinctly set forth in Hosford v. Hosford, 58 Ga. App. 188 (198 S. E. 289). In that case the court stated: “The gist of an action for alienation of affec-

tions is the loss of consortium, that is, the right of the husband or wife to the conjugal fellowship, company, co-operation and aid of the other in every conjugal way.”

Also in Jackson v. Davis, 203 Ga. 39 (45 S. E. 2d 278), it was held: A motion to dismiss in the nature of a demurrer, “will not be allowed unless every material fact on which the motion' is founded is apparent in the declaration.” (Italics ours.)

The allegations of the instant petition bring it squarely under the above provisions of law and, if sufficient of such allegations are proven, the plaintiff is entitled to a verdict.

The court did not err in denying the motion of the defendant to dismiss the petition.

Judgment affirmed.

Townsend and Carlisle, JJ., concur.

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Gardner, P. J.

We will not here discuss or go into the question that the motion of the defendant to dismiss the plaintiff’s petition was not filed in time. So far as this case is concerned, any discussion of that point is beside the question to be determined here. We have set out the allegations of the petition in [364]*364full, and have set out the allegations of the answer substantially. The court correctly refused to dismiss the petition of the plaintiff on the motion of the defendant. The defendant cites in support of the motion to dismiss the petition, Martin v. Ball, 30 Ga. App. 729 (119 S. E. 222), and Herrington v. Spell, 48 Ga. App. 802 (173 S. E. 870). A casual reading of the cases will disclose that neither of them approaches any similarity to the allegations of the petition now before us. We deem it useless to discuss them. The law governing the situation made by the allegations of the instant petition is succinctly set forth in Hosford v. Hosford, 58 Ga. App. 188 (198 S. E. 289). In that case the court stated: “The gist of an action for alienation of affec-

tions is the loss of consortium, that is, the right of the husband or wife to the conjugal fellowship, company, co-operation and aid of the other in every conjugal way.”

Also in Jackson v. Davis, 203 Ga. 39 (45 S. E. 2d 278), it was held: A motion to dismiss in the nature of a demurrer, “will not be allowed unless every material fact on which the motion' is founded is apparent in the declaration.” (Italics ours.)

The allegations of the instant petition bring it squarely under the above provisions of law and, if sufficient of such allegations are proven, the plaintiff is entitled to a verdict.

The court did not err in denying the motion of the defendant to dismiss the petition.

Judgment affirmed.

Townsend and Carlisle, JJ., concur.

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Bluebook (online)

76 S.E.2d 656, 88 Ga. App. 360, 1953 Ga. App. LEXIS 1089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kidd-v-holtzendorf-gactapp-1953.

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