Rose v. Hines

25 Ga. App. 791 | Ga. Ct. App. | 1920

Jenkins, P. J.

1. Failure to show jurisdiction is an amendable defect in a petition, and if the omission is not challenged by demurrer, with opportunity given to amend, a dismissal which has been entered for another and different reason will not be upheld because of such omission. Burton v. Wadley Southern Ry. Co., 25 Ga. App. 599 (103 S. E. 88).

2. The -claim against, the • railway company having arisen out of a liability incurred by its relief department as incident to the operation of its railway system, an action to enforce the claim would be against the railway company,but for Federal control. Washington v. Atlantic Coast Line R. Co., 136 Ga. 638 (71 S. E. 1066). The act of Congress of March 21, 1918, and the rules promulgated by Federal authority in pursuance thereof did not intend either to extinguish or impair, but, on the contrary, expressly preserved, the rights of parties to prosecute to judgment, in the name of the director-general of railroads as defendant, any cause of action that they had against the railway companies under the Federal, State, or common law. Hines v. Zellner, 25 Ga. App. 272, (103 S. E. 97). The court erred in dismissing the suit on general demurrer.

Judgment reversed.

Stephens and Smith, JJ., concur.

A general demurrer to the petition was sustained in an order in which the judge' said: “ Whatever the plaintiff’s rights may be as against the Atlantic Coast Line Bailroad Company, it seems to me that the petition is insufficient to make a case against demurrer, because it does not appear either that the defendant took over the relief department of the company, or that under the law governing the railroad administration, or the orders pursuant thereto, so far "as I am advised thereof, he was authorized to do so.”

Oliver & Oliver, W. S. Connerat, for plaintiff. Osborne, Lawrence & Abrams, for defendant.