*1 517 given within six and since was not petition contains it as the allegedly caused doing public months the the work which of of sustaining in the demurrer damage, the trial did not err judge the dismissing and in the action. very
The cases are confusing question party on the when a may must in damages or sue one action for all and versa. vice know gleaned I a definite rule can do not that be from the de to cisions. It seems me under that the facts of the this case public court should hold the improvement that the shown in petition conclusively permanent only remedy a one and is that the plaintiff damages the has is sue for to all in action. one See Bainbridge (152 Ivey, (1) Power Co. v. 41 App. Ga. E. 193 S. 306) rule perma for to when a is be as the as nuisance to treated if plaintiff nent. Even the in this case had remedies and two right them, had the to between so, my opin elect he has done in ion, authority this court and has no as one to treat the action only partial damage. for the had been due given If notice in special time damages a demurrer to the measure of could not plaintiff change have forced the of cause action from one to his seeking damages damages all at to an accru one time action for ing years within the four preceding filing action, the of the assuming plaintiff bring only the could If he could either action. bring an full damage time, my action for at conclusion all one is the nearly more correct. Supply Company
36350. Stein & Steel v. Tate. Nichols, Supply Company J. Stein brought Steel & an action in the Civil County against of Court DeKalb April 25, 1956, the defendant on and the day. defendant was served on original process this same The stated that May the action was returnable to court, May 7, 1956, the term of the copy process while the of on served the defendant stated that it was May 8, returnable to the June 1956, term of such plain- court. On the judgment against tiff took a default May 12, 1956, the defendant and on 1, 1956, a fi. fa. was issued. On June the defendant filed a motion re- questing judgment that the vacated, default be set aside and and that judge the case be reinstated. The trial ordered the motion filed and plaintiff 22, 1956,why that the show cause on June such motion should granted. 1956, 25, not be On setting- June the court entered an order judgment, 27, 1956, aside and on June amended such order th.e so as to plaintiff excepts judgment cancel the fi. fa. The 25, 1956, to the of June by judgment 27, as amended the of June 1956. Held:
518 the 1. there a conflict a a court decision Where is between statute and (51 Huguley, Huguley 2d v. 692 S. E. must 204 Ga. statute control. (88 Wright Co., App. 373, 445); E. 2d v. Ga. 383 S. Stevens Const. 92 511). Supreme any Therefore, decision of the Court conflict between the (27 City Bank, E. v. 147 S. of National 100 Ga. in the case Merritt Gate (Ga. 2405), pp. 1951, 2401, 979, 749), R. of L. L. A. the act 1951 38 and *2 by must be controlled the statute. 1951, supra, has to the Civil which reference
2. 11 of the Act of Section County part: provides shall be in “Each action of DeKalb Court filed days prior than 12 to the not less and summonses issued thereon first pro- brought particular . day . . term to which the same is the of good particular shall be late a term too for vided that service effected ours). days phrase succeeding (Emphasis The “12 for next term.” the prior day particular action must mean that the the of the term” to first day days prior not of term and does to the the be filed 12 first must days. present day of as of the 12 In the the the term one include first day prior April first to the filed 25 and the last case the action was on day only May 6, counting or day May first the last the of the term was prior days (8), § required by filed 12 action was not 102-102 the as Code judgment term, day May rendered the default first of the and to the May prematurely against was rendered. the term the defendant at granting Therefore, motion not err in the defendant’s the trial court did judgment. to set aside and vacate such default J., specially. Judgment J., Quillian, Felton, concurs C. concurs. affirmed. 23, Rehearing 3, 1956 1956. denied October Decided October Joseph Pine, plaintiff in error. J. for Mitchell, Freeman D. contra. specially J., concurring specially. no for the reason that I concur
Quillian, judg- perfected and the default on defendant valid service had been the ment was invalid.
36310. ATLANTA LUMBER COMPANY v. CARMACK et al. Rehearing 10, 1956 29, 1956. denied
Decided October October