Kiser v. Oglesby

11 Ga. App. 190 | Ga. Ct. App. | 1912

Pottle, J.

1. “In all pleas to the jurisdiction of the court, it must appear that there is another court in this State which has jurisdiction of the ease.” Civil Code (1910), § 5666. The plea must allege “that another court in this State has jurisdiction.” Kahn v. Southern Loan Association, 115 Ga. 459. “It must appear in such a plea that there is another court in this State which has jurisdiction of the case.” Alters v. High Co., 122 Ga. 279 (50 S. E. 105). See, also, Ridling v. Stewart, 77 Ga. 539. The original plea in this case alleged that the courts of Brooks county had jurisdiction of the case. Judicial knowledge is taken of the fact that there are two courts in Brooks county, and only two, which have jurisdiction to enforce a cause of action such as that set forth in the petition in this case, to wit, the city court of Quitman and the superior court of Brooks county. It would seem, therefore, that the original plea to the jurisdiction in this case ought to be sufficient, and that it would not be necessary to specify in the plea a thing which the court knows judicially without proof. If the cause of action had been one in which a justice’s court had jurisdiction, as in Bidling v. Stewart, supra, and Alters v. High Co., supra, then, of course, it would be necessary for the defendant to name the militia district in which he resided, and the particular justice’s court in the county which had jurisdiction of the ease. But the court knows judicially that the city court of Quitman has jurisdiction over the whole county of Brooks and has authority to enforce a cause of action such as that set forth in the petition. It likewise knows judicially that the superior court of Brooks county has the same power and authority; and that these are the only two courts in the county which have the jurisdiction to enforce the cause of action. But even if the decisions of the Supreme Court are to the effect that a plea to the jurisdiction, in order to be good, must on its face, in all cases, name the court which has jurisdiction of the case, there can, we think, be no serious question as to the right of the defendant to perfect his plea by amendment. The only limitation fixed by the code as to the right of amendment, either as to the form or substance, is that there shall be enough in the plea to amend by. Civil Code (1910), § 5681. In the-present plea it was alleged that city court of Hall county did not have jurisdiction of the defendant; that he was a resident of Brooks county, and that the courts of that county had jurisdiction of the case. Certainly it was competent for him to amend by naming the courts in Brooks county which had jurisdiction to enforce the cause of action.

2. The direction of a verdict in favor of the plea to the jurisdiction was not error. Plaintiff in error relied upon § 2182 of the Civil Code (1910), and especially that portion which provides that “a person who habitually resides a portion of the year in one eounty and another portion in another shall be deemed a resident of both, so far as to subject him to suits in either for contracts or torts committed in such county.” By its terms this portion of the section presupposes residence, and, to make it applicable, it must appear that the person involved made his residence for a part of the year in the county in which suit was brought. There was, however, no evidence that the defendant really resided in Hall county at all. His home was in Quitman, his parents lived there and he made his home with them, and his business was there. For a number of years he had been spending the greater portion of the hot months at his father’s summer resort in Hall county, returning home for a week in each month, to attend to necessary business there. The mere fact that while in Hall county he may have assisted to some extent in the management of the hotel, by making purchases and the like, makes no difference. He says he never intended to change his domicile, and there are no facts proved to authorize a finding that he did. See Knight v. Bond, 112 Ga. 828 (38 S. E. 206); Smith v. Smith, 136 Ga. 197 (71 S. E. 158). The evidence demanding a finding in favor of the plea to the jurisdiction, there was no error in directing the jury so to find. Judgment affirmed.