55 Ga. App. 141 | Ga. Ct. App. | 1937
Mrs. Robinson filed suit in the city court of Bainbridge against the Attapulgus Clay Company, and obtained a judg
We will discuss first the contention, that, having filed in the city court no petition to remove this same suit, the defendant may not now file such a petition; that, having appeared and pleaded in the city court, the defendant waived its right to have the case removed for diversity of citizenship. If the present case was the case in the city court of Bainbridge, we would be inclined to agree. The Code, § 3-808, however, declares that “If a plaintiff shall be nonsuited or shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation [italics ours], with the original case.” The above section merely tolls the statute of limitations, but does not prevent the defendant from filing such proceedings as he may deem best as against the recommenced action. An amendment will open a petition to a general demurrer; and a suit which has been dismissed and renewed, even in the same court, may be demurred to on renewal, although no demurrer was interposed in the original action. A plaintiff, on renewal, may allege additional facts or contentions, and the defendant likewise can interpose such defensive pleadings as he may deem best. The suit recommenced
The plaintiff insists that there is no-sufficient allegation as to diversity of citizenship; that it is necessary to allege of what State the plaintiff is a citizen, as well as the State where the defendant has its citizenship; and that the allegation that the plaintiff is a resident of the State of Florida or a resident of the State of Georgia is insufficient. It is true that the allegation of residence is not an allegation of citizenship (Continental Ins. Co. v. Rhoads, 119 U. S. 237 (7 Sup. Ct. 193, 30 L. ed. 380); Everhart v. Huntsville College, 120 U. S. 233 (7 Sup. Ct. 555, 30 L. ed. 623); Galveston &c. Co. v. Gonzales, 151 U. S. 496 (14 Sup. Ct. 401, 38 L. ed. 248); Hinman v. Barrett, 244 Fed. 621; Harding v. Standard Oil Co., 182 Fed. 421), and to allege that the plaintiff is a resident of the State of Georgia is not sufficient to show his citizenship in this State. In Neel v. Pennsylvania Co., 157 U. S. 153 (15 Sup. Ct. 589, 39 L. ed. 654), cited by counsel for the plaintiff, it is said: “The allegation in the petition for removal of a cause, that the plaintiff ‘is a resident of the State of Ohio in the County of Eichmond/ is not sufficient to show its citizenship in that State; and the additional allegation ‘that the matters in controversy in this suit are wholly between citizens of different States’ is an unauthorized conclusion of law from such facts.” In Grace v. American Central Ins. Co., 109 U. S. 278 (3 Sup. Ct. 207, 27 L. ed. 932), also cited for the plaintiff, it was said: “The doctrine reaffirmed, that when jurisdiction of the circuit court depends upon the citizenship of the parties, such citizenship, or the facts which in legal contemplation and intendment constitute it, must be distinctly and positively averred in the pleadings, or appear with equal distinctness in other parts of the record. An aver
It may be well to consider the reason for these rules of exact and distinct averment of citizenship of the parties to an action. In U. S. C. A. § 112, it is declared that “No civil suit shall be brought in any district court against any person by any original process [italics ours] or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.” Jurisdiction itself is a term that is defined to be “the power of hearing and determining causes and doing justice in matters of complaint.” Wright v. State, 16 Ga. App. 216 (84 S. E. 975). “The jurisdiction of a court is determined by its power or its lack of power to deal with a plaintiff’s petition.” Garfield Oil Mills v. Stephens, 16 Ga. App. 655 (85 S. E. 983). “A court of competent jurisdiction is one that has jurisdiction both of the person and the subject-matter.” English v. Central of Ga. Ry. Co. 7 Ga. App. 263 (66 S. E. 969). Jurisdiction refers to the power of the court over the subject as well as the person. The power of the court over the subject-matter is a sine qua non to a valid judgment, and may not be waived by consent of the parties. Jurisdiction over the person is a personal plea and may be waived. In the cases cited, as well as in numbers of other cases, the U. S. C. A. section quoted above has been construed to mean that even in cases transferred to the Federal courts because of diversity of citizenship, before the Federal court will entertain jurisdiction it must affirmatively appear, not only that the defendant, who alone had power to petition the State
The petition for removal in the present case distinctly avers that
Judgment affirmed.