145 Ga. 847 | Ga. | 1916
(After stating the foregoing facts.) We are of the opinion that this was clearly an action ex delicto. As will be seen by reading the original petition, the plaintiff alleges' that the' defendant railroad company unlawfully delivered the property in controversy, not to the plaintiff or his order, but' to a certain corporation known as the Senoia Duck Mills, and that this delivery without an order from the plaintiff and without his consent was an unlawful conversion by the carrier of the property of the plaintiff; that this property, the machinery shipped; which-was unlawfully delivered to the Duck Mills 'and -thus converted by the carrier, was of the value of $44,663; and plaintiff asks judgment for this amount as the value of the. property at the time of the alleged unlawful conversion, with interest thereon from the date of the conversion. Thus in apt phraseology the pleader stated a complete cause of action ex delicto. That being true, it was not competent by an amendment to change the action into one arising ex contractu, and objection to the amendment based upon the ground that by the amendment the plaintiff sought to set up a new cause of action should have been sustained. Sharpe v. Columbus Iron Works, 136 Ga. 483 (71 S. E. 787) ; Gilleland v. Louisville &c. R. Co., 119 Ga. 789 (47 S. E. 336); Cox v. R. & D. Railroad Co., 87 Ga. 747 (13 S. E. 827). The amendment tendered in this case, which is set forth in the statement of facts, being one seeking to change the 'cause of action from one ex delicto to one ex contractu, and that not being allowable, the court should have sustained the demurrer to the amendment and also the general demurrer to the petition as amended, the amendment having been allowed subject to demurrer. . .
The action here brought is of such a character that the courts of the county in which the injury complained of was done by the defendant alone had jurisdiction of the suit to recover damages for the wrong done. In section 2798 of the Code of 1910 it is
Judgment reversed.