126 Ga. 238 | Ga. | 1906
1. One ground of the motion to dismiss was, because the return term of the court for the case had adjourned without any service having been perfected upon the Brunswick and. Birmingham Bailroad Company' oí any return by any officer authorized to make service to account for the want of such service. After the court had overruled the motion, the plaintiff amended her petition by striking therefrom the Brunswick and Birmingham Bailroad Company, as a party defendant. She had a perfect right to do this after the court had overruled the motion to dismiss the case upon the ground above indicated. She could amend her petition at any stage of the cause. This court has held that even after the Supreme Court has decided that the trial court erred in overruling a demurrer to a petition, the force of the demurrer may be. avoided by a proper amendment to the petition, before the remittitur from the Supreme Court is entered upon the minutes of the trial court. Thurmond v. Clark, 47 Ga. 501; Augusta Railway Co. v. Andrews, 92 Ga. 706; Savannah Railway Co. v. Chaney, 102 Ga. 814; Charleston Railway Co. v. Miller, 115 Ga. 92. It was held in Sanford v. Bradford, 45 Ga. 97, that, “In a joint suit against several, if one be not served, the plaintiff may dismiss as to the. one not served; and if he go to -the jury and get a verdict, the-verdict is good against those served, though there be a failure to-dismiss against the defendant not served. The defect is a mere-irregularity. and does not make the judgment void.” So, where a, petition in an action of tort is brought against two defendants,, and no service is perfected upon one of them, it may be amended, by striking therefrom the one not served; and if this is done, without otherwise altering the language of the petition, all the substantial allegations of the petition will thereafter be read and understood as if there had been only one defendant originally. Chattanooga Railroad Co. v. Whitehead, 89 Ga. 190; Chattanooga Railroad Co. v. Davis, Ib. 708.
2. Another ground of the motion to dismiss was, because it did. not appear from the petition that the costs which had accrued in the previous cases of which this case was the renewal had been paid,, or that the affidavit required by law, in lieu of the payment of costs-had been filed. At the time of filing the suit now under consideration,* the plaintiff filed the following affidavit: “That she has-been advised and believes that she has a good cause for recommenc
3. There was no merit in the general demurrer. Counsel for
Counsel for plaintiff in error further contend that the petition set forth no cause of action, because it shows that the deceased went upon the track, in front of an approaching engine, “and nowhere shows that he made any effort to ascertain if the track was clear, nor any effort whatever to avoid the danger and its result, and by all the allegations of said petition it appeared that the deceased, as a rational man, could have, by the exercise of the slightest care, avoided the killing.” They further contend that “the company had the right to assume that he would not voluntarily place himself in danger, and to rely upon that presumption until the contrary appeared, and was then and not till then bound to make any effort to avoid the killing.” The petition made the following allegations: Plaintiff’s husband “was killed by the running of the locomotive, cars, and other machinery of the defendants,” by being struck by their engine as he was crossing one of their tracks. At the time he was killed, he was crossing the track of the defendants on a private wa]r, and “at a place where he had
4. Another ground of the demurrer was, that the petition showed that the cause of action was barred, by the statute of limitations. From the allegation of the petition as to the date when the plaintiff’s husband was killed, the cause of action accrued on February .3, 1902. The petition does not disclose the date of the filing of the first suit by the plaintiff, and it could not be assumed, upon demurrer. that it was not filed in due time under the statute of limita
5. Another ground of the demurrer was, that there was a misjoinder of parties defendant. Whether this was true or not as to the •original petition, it was not true after it was amended by striking therefrom the Brunswick, and Birmingham Eailroad Company, leaving the case to proceed only against the Seaboard Air-Line Eailway, the plaintiff in error here. So the merits of this ground •of the demurrer are not before us for consideration.
Judgment affirmed.