Nalley & Co. v. Moore

181 S.E. 429, 51 Ga. App. 718, 1935 Ga. App. LEXIS 448

• Court: Court of Appeals of Georgia
• Decided: July 26, 1935
• Docket: 24570
• Status: Published

Opinions

Jenkins, P. J.

1. In a petition for certiorari from a final judgment in the city court of Buford to the superior court of the county, error may be assigned by a defendant on the overruling of a general demurrer to the petition and the denial of a motion to dismiss for alleged failure to show jurisdiction, without the necessity of exceptions pendente lite to such preliminary rulings. Certiorari does not lie until “after the final determination of the case in which the error is alleged to have been committed” (Code-of 1933, § 19-209), even though a previous ruling upon demurrer or motion may involve “the question of jurisdiction to entertain the case.” Everidge v. Berrys, 93 Ga. 760 (20 S. E. 644); Johnson v. Barrett, 26 Ga. App. 781 (107 S. E. 168). Where a writ of error is brought to this court after a final judgment, and more than the statutory time for such writ has elapsed after a previous decision on demurrer or motion, rights of exception thereto must be preserved by timely exceptions pendente lite; but under the statute establishing the city court of Buford, such exceptions are neither necessary nor appropriate where the final judgment and preliminary rulings of the court are reviewed by certiorari. Code of 1933, §§ 6-701, 6-902, 6-905, 6-1305; Paxton v. Berrien County, 117 Ga. 891, 892 (45 S. E. 266); Walker v. Cliff Drug Co., 23 Ga. App. 722 (99 S. E. 392).

2. A petition that does not show the essential facts necessary to give the court jurisdiction is subject to general demurrer. Atlanta Accident Asso. v. Bragg, 102 Ga. 748, 750 (29 S. E. 706). The caption or title of a pleading is the heading or introductory clause showing the names of the parties, the name of the court, the county where the action is brought, and usually the term of the court and the number of the case on the docket or calendar. But the introductory paragraph in the body of the petition itself is not a part of the caption or title. See 1 Bouvier’s Law Dictionary (Rawle’s 3d Rev.), 794. Whether or not, therefore, a “caption” is to be deemed part of a petition, in the absence of an express reference thereto in the body of the pleading, so that a statement of jurisdiction or venue in the caption alone would be sufficient to withstand a general demurrer (see St. Louis Lightning Rod Co. v. Johnson, 18 Ga. App. 190-192, 89 S. E. 169; Jackson v. Ashton, 8 Peters, 148 (8 L. ed. 898); 49 C. J. 116, 130, 131; Black’s Law Die.), need not be determined in the instant case, since the essential allegations of jurisdiction sufficiently appear in the body of the petition, and the contention that these allegations appear only in the “caption” is not supported by the pleading.

Decided July 26, 1935. Rehearing denied September 6, 1935. Boyd Slocm, 8am 8. Harben, for plaintiffs in error. A. G. Liles, W. L. Nix, contra.

3. “Fraud renders contracts voidable at the election of the injured party.” Code of 1933, § 20-502. It “ordinarily gives the injured party an option either to rescind the contract so induced, or, by affirming the same, to claim damages as compensation.” Barfield v. Farkas, 40 Ga. App. 559 (2) (150 S. E. 600). “There is a distinction to be drawn between a contract induced by fraud, and the mere breach of a warranty. In the former case, title does not pass, and the contract may be rescinded. In the latter case, title does pass, and the purchaser is relegated to his claim for damages. No form of or limitation in a warranty will protect a party from a rescission of a contract on the ground that it was induced by actual fraud.” Dove v. Roberts, 50 Ga. App. 321 (178 S. E. 169), and cit. In a suit by purchasers of an automobile for the recovery from the seller of damages sustained from alleged false and fraudulent representations by the seller’s agent as to the mechanical condition of the car, the testimony of the plaintiffs as to such actual fraud inducing the contract was admissible; and a verdict in their favor under this evidence, although controverted, was authorized, although the conditional-sale contract contained the provisions: “The seller expressly warrants title to said property, no other warranty being made by the seller, the purchaser agreeing that all manner of inducement and understanding and agreements and representations have been merged in this contract. Buyer agrees that there are no representations, warranties, or agreements touching this contract not contained therein.” See Summerour v. Pappa, 119 Ga. 1 (5), 6 (45 S. E. 713); Schofield v. Burns, 178 Ga. 186 (2), 188 (172 S. E. 569); Dunn v. Citizens & Southern Co., 47 Ga. App. 600 (171 S. E. 170); Edge v. Alertox Inc., 47 Ga. App. 598 (2-4) (171 S. E. 181); Snellgrove v. Dingelhoef, 25 Ga. App. 334 (103 S. E. 418); Dove v. Roberts, and Barfield v. Farkas, supra.

4. Under the preceding rulings, the superior court did not err in overruling the defendant’s petition for certiorari.

Judgment affirmed.

Stephens and Sutton, JJ., concur.