51 Ga. App. 718 | Ga. Ct. App. | 1935
Lead Opinion
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 juris
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.
Rehearing
ON MOTION FOR REHEARING.
The motion for rehearing presents no conten-, tion not already fully considered, except the question whether the petition alleged venue of the'trial city court over the defendant corporation sufficiently to withstand the general demurrer. This was dealt with in paragraph 2 of the original syllabus, where it was held that “the essential allegations of jurisdiction sufficiently appear in the body of the petition, and the contention that these al
In the original brief of the plaintiff in error (defendant in the court below) it was stated: “The suit stated in the caption or preamble that C. Y. Nalley & Company was a corporation, having its principal office in Hall County, Georgia, but no such allegation in a numbered paragraph was made;” and “the petition stated in the caption, and before paragraph one of the petition, facts giving the court juris diction.” It was then stated: “Therefore, if this statement in the caption can be treated as an allegation of the petition, then it ivas not subject to the demurrer—contra, if it was not an allegation of the petition, then the demurrer should have been sustained.” This was the jurisdictional contention made in the original brief. The motion for rehearing, however, makes the new and additional contention that the following averments of the petition are repugnant to each other, and negative the jurisdiction of the trial court: “The petition of Dr. and Mrs. W. F. Moore, complaining against C. Y. Nalley & Company, a corporation organized and existing under the laws of the State of Georgia, with their principal office and place of business in the City of Gainesville, Georgia, shows to the court the following facts: . . Defendant has an office and place of doing business in the City of Buford, 550th District G. M. of Gwinnett County, and for the purpose of this suit is therefore subject to the jurisdiction of the court.”
The petition set forth an action in tort for damages resulting from alleged fraudulent representations by an agent of the defendant, who represented it in making the sale contract for the automobile in question. In the 5th paragraph it was alleged that the defendant by and through this agent “then and there” made the representations. There was a preceding averment fixing the date of the contract. As to the place of the transaction, the last averment preceding the words “then and there” was the above-quoted language of paragraph 1 that the defendant had an office and place of doing business in the stated militia district, city of Buford, Gwinnett Countjq within the territorial jurisdiction of the trial court. It was also conceded in the statement of facts made in 'the original brief of plaintiff in error that “the sale was made and the contract executed by and through the Gwinnett County agent and in Gwinnett County.” Movant, however, now contends that, un
It is the general rule that the words “then and there” refer to the time and place last specified, unless some phrase is used in connection therewith which shows that a different reference was intended. Voegrin v. American Steel & Wire Co., 263 Ill. 474, 477 (105 N. E. 332); Commonwealth v. McKenney, 80 Mass. (14
Rehearing denied.
