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Lawskills.com Georgia Caselaw
DOUGHERTY COUNTY v. HAMILTON et al.
37586.
Action for damages; plea to jurisdiction. Albany City Court. Before Judge Jones. October 29, 1958.
TOWNSEND, Judge.
2. The petition in this case states a cause of action against the defendant Dougherty County for damages for the taking of private property for public use without just compensation being first paid. It was properly brought against Dougherty County alone, although such county may, if it desires, vouch in the State Highway Department and require that body to become responsible for any recovery in this case.
The plaintiffs sued Dougherty County, in the City Court of Albany, alleging in their petition as amended that the defendant county and the State Highway Department of Georgia by direction of the defendant county entered upon and took possession of certain land of theirs without any condemnation proceedings; that the plaintiffs had demanded payment for their land of both the defendant county and the State Highway Department which was refused; that the plaintiffs further made demand upon the defendant county within twelve months after the taking of their lands by filing suit and that such demand for settlement was refused. The petition further alleges that the Highway Department has been served as provided in 95-1710 of the Code of Georgia as amended by the Act of 1957, providing for such service, thus placing the county in position to vouch the Highway Department in to defend the action under this Code section if they so desire, and thus fixing the ultimate liability of the State Highway Department for any recovery against the defendant if the Highway Department is properly vouched in to defend the case. The action is against the county only and is brought pursuant to the provisions of art. 1, sec. 3, par. 1, of the Constitution of the State of Georgia, Code 95-1710 as amended by the Act of 1957, and in accordance with procedure approved or distinguished in Taylor v. Richmond County, 185 Ga. 610 (196 S. E. 37); Hardin v. State Highway Board, 185 Ga. 614 (196 S. E. 40); State Highway Board v. Perkerson, 185 Ga. 617 (196 S. E. 42). The defendant filed a plea to the jurisdiction alleging that the plaintiffs' action is one respecting title to land and that by the terms of art. 6, sec. 4, par. 1 (Code, Ann., 2-3901) of the Constitution of the State of Georgia, the Superior Court of Dougherty County and not the City Court of Albany has exclusive jurisdiction of the case; also a demurrer subject to the plea to the jurisdiction predicated on several general and special grounds including one that the action shows on its face to be one of which the superior court and not the city court has exclusive jurisdiction for the same reason asserted in the plea to the jurisdiction. The trial judge overruled both the plea to the jurisdiction and the demurrer on all grounds, and a bill of exceptions complaining of this judgment was sued out to the Supreme Court. The judgment of the Supreme Court transferring the case from that court to this court recites: "Title to land being only incidentally involved and the only relief sought being to recover, as damages, the value of the property alleged to have been taken for public purposes, the Court of Appeals and not this court has jurisdiction to review the orders complained of." Dougherty County v. Hamilton, 214 Ga. 644 (106 S. E. 2d 789).
2. The petition states a cause of action under the authority of the Constitution of the State of Georgia, art. 1, sec. 3, par. 1, (Code, Ann., 2-301); Code 95-1710; and Taylor v. Richmond County, 185 Ga. 610 (196 S. E. 37), Hardin v. State Highway Board, 185 Ga. 614 (196 S. E. 40), State Highway Board v. Perkerson, 185 Ga. 617 (196 S. E. 42).
The briefs are devoted exclusively to the question of jurisdiction. There is no insistence therein as to any other ground of demurrer, and no oral argument was advanced in this court on behalf of the plaintiff in error as to any of the other grounds of demurrer. Accordingly, all the grounds of the demurrer relating to questions other than the jurisdiction of the City Court of Albany are treated as abandoned. The judgment of the trial court overruling the plea to the jurisdiction and the demurrer on each and every ground is without error.
Judgment affirmed. Carlisle, J., concurs. Gardner, P. J., concurs in the judgment.
E. L. Smith, contra.
Eugene Cook, Attorney-General, Paul Miller, E. J. Summerour, Lamar Murdaugh, Assistant Attorneys-General, Ariel V. Conlin, Deputy Assistant Attorney-General, Leonard Farkas, for plaintiff in error.
DECIDED APRIL 30, 1959.
Saturday May 23 01:02 EDT


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