Richmond & Danville Railroad v. Mitchell , 95 Ga. 78 ( 1894 )

Lumpkin, Justice.

Section 4191 of the code provides that all demurrers to bills in equity (now called equitable petitions) must be made at the first term; and rule 28 of the superior courts provides that: ” “All matters appearing on the face of the declaration or process, that would not be good in arrest of judgment, shall be taken advantage of at the first term, and be immediately determined by the court.” New Rules of Court (1893), page 13; Code, page 1349. This rule is, of course, applicable to actions at law. It is well settled, however, in Georgia practice, that in actions either at law or in equity a motion to dismiss, based upon the ground that the declaration or petition fails to state a cause of action, may be entertained even at the trial term.

As to defects of form, we understand it now is, and has ever been, the rule that advantage of them must be taken by special demurrer at the first term. The section of the code first above cited settles this question as to equity practice, and we think the rule of court settles it as to proceedings at law. Such seems to have been the opinion of Craweord, Justice, in Maddox v. The County of Randolph, 65 Ga. 216, which was an action for damages brought on the law side of the court. On page 217 he uses the following language: “All objections appearing upon the face of the declaration which would not be good in arrest of judgment should be taken advantage of at the first term, and a demurrer should have been taken at that time to have brought the defendant within the rule of court; and as that term had passed and the general issue had been filed, this was a defence more appropriate to plea than motion.” This view is also supported by Mayor & Council of Cartersville v. Maguire, 84 Ga. 174. It appears that Maguire had brought an action against the municipal authorities, to recover damages alleged to have been caused by the creation and maintenance of a nuisance. The defendants demurred to the declaration on various grounds, one of which was that it set forth no legal cause of action. The demurrer was sustained and the declaration dismissed, and upon writ of error the judgment was. reversed, this court holding that the allegations in the declaration were sufficient, if sustained by proof at the trial, to entitle the plaintiff to damages. See 76 Ga. 84. The next trial of the case in the superior court resulted in a verdict for the plaintiff, and the case was again brought to the Supreme Court, one of the errors assigned being the refusal of the trial judge to sustain a demurrer to so much of the declaration as complained of damages occasioned more than four years prior to the bringing of the suit. With reference to this question, Chief Justice Bleckley said: “Besides, the bill of exceptions states that the demurrer was made in writing at the trial term, and it was then too late to demur specially to any part of the declaration, this court having held, in 76 Ga., supra, that a cause of action was set forth, and the twenty-eighth rule of the superior courts requiring that all matters appearing on the face of the declaration or process, not good in arrest of judgment, shall be taken advantage of at the appearance term.” See 84 Ga. 176. We may therefore assume that in actions brought in the usual way by-petition and process, special demurrers relating only to matters of form, or to defects the existence of which would not be cause for arrest of judgment, are cut off after the appearance term.

Section 3309 of the code declares that a general judgment may be rendered against a defendant in an attachment case, after compliance with the provisions of that section in relation to giving the defendant written notice of the pendency of the attachment; and section 3310 provides that, in such cases, the defendant may appear and make his defence at any time before final judgment is rendered against him. It certainly cannot have been the intention of the legislature to put a defendant in attachment cases upon any better or moré favorable ground than defendants in ordinary suits. The notice and service provided for in section 3309 take the place of process and service in common law actions. The effect of both is to bring the defendant into court, subject him personally to its jurisdiction, and render him liable to a judgment binding upon all his property. When he comes into court, he may demur generally or specially, or he may defend by plea; but he cannot, after pleading to the merits and a term has passed, begin over again and raise objections to the declaration because of alleged defects in matters of form merely. He might, of course, move to dismiss the action on the ground that the declaration failed entirely to state a cause of action, but this is quite a different matter from demurring specially to particular portions of the declaration. Assumiug that a cause of action is stated, the’ office of a special demurrer is to eliminate all improper, superfluous and unnecessary matter, or to compel the plaintiff’ to .give the defendant definite and specific information with sufficient fullness and certainty to enable him to make his defence; or, upon the plaintiff’s refusal so to do, to send his case out of court. If, notwithstanding defects in the declaration, merely formal, or which would not be good in arrest of judgment, the defendant is ready to file a plea to the merits, and does actually file it, be is in tbe attitude of saying he does not need any fuller or more definite information as to the plaintiff’s alleged cause of action, but is prepared to meet the case without such additional information. He has a perfect right to waive imperfections in the declaration, of the kind indicated; and if he does so, he ought not — certainly not after the term is passed — to be allowed to insist upon objections which he has already had full opportunity to make, but of which he has made no endeavor to take advantage. To hold otherwise would put it within the power of a defendant to force the court to go through a long and tedious investigation to no purpose, expending much time and labor which might have been saved to all concerned. The case with which we are now dealing presents just such an instance. A trial of this action was had upon its merits, resulting in a verdict against the defendant; a motion for a new trial was made and overruled; the case was brought to this court, the judgment below reversed and a new trial granted. After all this had been done, the defendant, at the next trial, presented and insisted upon special demurrers raising numerous questions as to the sufficiency of the plaintiff’s declaration, but none of them vital to his cause of action. This certainly, in a common law action, would not have been allowable; and we hold that in an action brought by attachment the same rule, to the extent above indicated, should prevail.

2. The use of irrelevant or improper language by counsel in addressing a jury will not, in every instance, authorize the court to declare a mistrial, or grant a new trial. The language complained of in the present case, the substance of which, as wTell as the action taken by the court with reference thereto, is stated by the reporter, while not at all proper or becoming, was not, we think, so seriously calculated to prejudice the minds of the jury, or to lead them to find a wrong verdict, as to require any further correction than was administered by the presiding judge.

3-4. In the 3d head-note we have stated, in a condensed form, that portion of the law of Alabama pertinent to the facts of the present case, under which an employee of a railway company is entitled to recover damages for injuries received in the company’s service. We have also endeavored to state very briefly the facts upon which the verdict for the plaintiff is sustainable. It is not clear that the plaintiff, upon closing his evidence, had made out a case; and therefore the motion for a non-suit might, perhaps, properly have been granted. The defendant, however, doubtless for strong reasons, introduced, without objection on the part of plaintiff’s counsel, ex parte statements made by a number of the servants of the company. These statements contained evidence of value to the defendant, but we think they also contained evidence from which the jury could very reasonably infer that the track, at the place where the plaintiff' was injured, was in a defective and dangerous condition, and had been so for some time before the injury occurred. This evidence, in connection with that introduced by the plaintiff', so far authorized the jury to find that there was a “ defect in the condition of the ways ” of the master to which the plaintiff’s injuries were attributable, that we feel constrained to let the verdict stand, it having been approved by the trial judge, and this being the second verdict in the plaintiff’s favor.

"We shall not undertake to further state or discuss the numerous grounds of alleged error appearing in the record, the case, upon its substantial merits, being covered by what has already been said.

Judgment affirmed.