146 Ga. 216 | Ga. | 1916
1. Where by statute a term of the superior court commences on the first Monday of a given month and may continue for two weeks, and a suit is instituted the requisite time before the term, and the petition contains a prayer that process issue, requiring the defendant to appear “at the next term,” to answer, etc., and the clerk attaches to the petition a process which is regular in all respects except that, by clerical error, it requires the appearance of the defendant at the court to be held on the second Monday in the month, and service is duly made on the defendant, who appears at the “next term” solely for the purpose of moving to dismiss the action for want of a valid process, and files a motion to dismiss on that ground, and on the hearing of the motion at the second term after the appearance term the judge, on motion, allows the process to be amended by striking out “second Monday” and inserting in lieu thereof “first Monday,” to which amendment no objection is interposed or exception taken, it is not erroneous to refuse to dismiss the case on the ground that the process is void as returnable to an impossible term. Richmond & Danville R. Co. v. Benson, 86 Ga. 203 (12 S. E. 357, 22 Am. St. R. 446); Baker v. Thompson, 75 Ga. 164.
2. Where by statute a prior right of .action is given to beneficiaries other than the plaintiff, the petition must negative the existence of any person who has such primary statutory right to sue. Tiffany on Death by Wrongful Act, § 182; 13 Cyc. 341; Register v. Harrell, 131 La. 983 (60 So. 638); Chocktaw R. Co. v. Jackson, 182 Fed. 342. The employer’s liability act (Acts 1909, p. 60, Civil Code, §§ 2781, 2782), giving a right of action against railroad common carriers for negligent homicide of their employees, gives a primary right of recovery to the widow or husband or child or children of the employee, and, if there be no person of either class, then to the parents of the employee. The right to sue is given primarily to the personal representative of the deceased, the recovery to be for the benefit of persons determinable in the above order; but if there be no personal representative, then the class of persons entitled to recover may sue in their individual names. Williams v. W. & A. R. Co., 142 Ga. 696 (83 S. E. 525); W. & A. R. Co. v. Smith, 144 Ga. 737 (87 S. E. 1082). Where the parents assume to sue in their own names for the homicide of their minor son, and the petition negatives the existence of all the primary classes except “child or children” of the decedent, the petition is subject to an oral motion to dismiss in the nature of a general demurrer.
(б) In some States, where by statute pleadings are construed liberally in favor of the pleader, rulings have been made seemingly contrary to the one just stated. Jackson v. Lincoln Min. Co., 106 Mo. App. 441 (80 S. W. 727) ; Pries v. Ashland R. Co., 143 Wis. 606 (128 N. W. 281).
3. Applying the foregoing, it was erroneous to refuse to dismiss the action on motion. Judgment reversed.