Kimbro & Morgan vs. The Virginia, etc., Railway Company.

the wife and children of McWhorter, the tenant for life, being joined with him as co-defendants. The court below made no ruling on that question, but we were requested in the argument to express our opinion upon it. As the cause will proceed to subject the income alone, McWhorter will be the only proper defendant, his wife and children not being interested in the income, simply in a contingent remainder in the corpus.

Judgment reversed.

KIMBRO & MORGAN, plaintiffs in error, vs. THE VIRGINIA AND TENNESSEE AIR-LINE RAILWAY COMPANY, defendant in error.

1. An order of the court in these words: "Upon motion of defendant's counsel, ordered that this cause be dismissed upon the ground that the allegations in the petition do not make a case upon which plaintiffs can recover," is a judgment of the court upon demurrer to the declaration, and operates as a complete bar to a second suit for the same cause of action, and may be pleaded as "res adjudicata" thereto.

2. If it did, the plea of “res adjudicata" would bar the second action and any legitimate amendment thereto; and if the amendment set out a new and distinct cause of action, it would not be received and allowed as an amendment, but if it could be so allowed, the statute of limitations would run against it from the breach of the contract to the date of the amend

ment.

3. Such judgment on demurrer and dismissal of plaintiffs' action consequent thereon, is not included in section 2932 of the Code, so as to authorize the plaintiff to renew his action within six months, and to make the renewed case stand upon the same footing as to limitations with the original case. Judgments. Demurrer. Practice in the Superior Court. Pleadings. Amendment. Statute of limitations. Before Judge BUCHANAN. Troup Superior Court. November Term, 1875.

Reported in the opinion.

BIGHAM & WHITAKER; SPEER & SPEER, for plaintiffs in in error.

VOL. LVI. 13.

Kimbro & Morgan vs. The Virginia, etc., Railway Company.

A. W. HAMMOND & SON, by JOHN L. HOPKINS; B. C. FERRELL, for defendant.

JACKSON, Judge.

At the November term, 1867, of the superior court for the county of Troup, the plaintiffs sued the defendant, as a common-carrier, for the violation of a contract to deliver a large stock of goods at LaGrange, Georgia, from Philadelphia, where they were bought. The suit was begun by attachment, and a declaration in assumpsit was filed thereon under our statute. At the November term, 1869, the case came on for trial. It appears that some evidence was introduced by the plaintiffs, but the case went off on demurrer to the declaration, as appears from the following order passed by the court: "Upon motion of defendant's counsel ordered that this cause be dismissed upon the ground that the allegations in the petition do not make a case upon which plaintiffs can recover."

The case was brought to the supreme court and dismissed on the ground that the record and bill of exceptions were not transmitted to this court, and the judgment of the court below was affirmed. This judgment was entered on the minutes of the court below at November term, 1870. On the 5th of July, 1870, another attachment was sued out, on which another declaration, just like the first, was filed. This declaration was amended at the November term, 1872.

Defendant pleaded res adjudicata as to the declaration filed in 1870, and the statute of limitations as to the amended declaration. Plaintiffs introduced in evidence the bill of exceptions in the former case, wherein this judgment of dismissal is set out, and Kimbro, as a witness to the contract, its breach and the damages thereon. The defendant introduced no evidence.

The court charged the jury that the case had been adjudicated, as appears from the bill of exceptions, and also that if the amended declaration was filed four years after the cause of action accrued, then that the plaintiffs could not recover. The

Kimbro & Morgan vs. The Virginia, etc., Railway Company.

jury found for the defendant; the plaintiffs moved for a new trial on the ground that the charge of the court was erroneous and the verdict against the law and the testimony; the court refused to grant the new trial, and this is the error assigned.

1. The judgment of a court upon demurrer to the declaration is a final disposition of the case. The demurrer admits all the allegations in the declaration to be true. The plaintiff can prove only the allegations which he sets out in his declaration. The demurrer, therefore, admits the whole case of the plaintiff, and makes the issue in law upon the case that, admitting it all to be just as he says, the law will not allow him to recover. A judgment rendered thereon by the court is just as conclusive as a judgment rendered by the same court on facts found by the verdict of a jury. In the one case the jury finds the facts to be true; in the other, the defendant admits them to be true; in either case the judgment of the court is the sentence of the law upon the facts. Was this order a judgment of the court upon the allegations made in plaintiffs' declaration? It affirms that it was. It is, therefore, a judgment rendered on all the admitted facts, and concludes the plaintiffs' case. We think, therefore, the charge right, if this case be the same as that which went off on demurrer in the former suit. The cases seem to be identical and res adjudicata was well pleaded.

2. In respect to the charge on the statute of limitations, we think the court also right. If the amendment made a new cause of action and could have been engrafted on the original declaration at all, the statute of limitations ran from the time that the cause of action accrued up to the time that the amendment was filed. If it was not a new cause of action we do not see how it could vary the substance of the original declaration so as to prevent the judgment rendered on that declaration from making a case of res adjudicata, and thus concluding the plaintiffs. In any event, we think the case with the defendant, the charge of the court right and the verdict in accordance with the law and the testimony.

Sturgis & Berry vs. Frost.

3. Nor do we think that section 2932 of the Code, which declares that "If a plaintiff shall be non-suited, or shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation, with the original case; but this privilege of dismissal and renewal shall be exercised only once under this clause," is applicable to a case dismissed by the court on solemn judgment on demurrer. The words "but this privilege of dismissal," and the words "dismiss his case," evidently mean where the party plaintiff himself exercises the privilege of dismissing his case, and not where the court dismisses it on demurrer. In so far as the Code conflicts with the act of 1847, that act is repealed. It is scarcely necessary, however, to decide this point, as the case is controlled by the other points hereinbefore adjudicated.

Let the judgment be affirmed.

STURGIS & BERRY, plaintiffs in error, vs. FRANCIS A. FROST, defendant in error.

1. The tenant is not obliged to replevy, disputing the rent by affidavit and giving security for the eventual condemnation money, and then wait for a judicial determination of the controversy, in order to entitle him to commence an action against the landlord for suing out a distress warrant maliciously, and without probable cause, and for having the same levied upon his goods.

2. Distress warrant, unresisted, is final process of itself: 34 Georgia Reports, 178. After levy, it is more in the nature of a suit terminated than of a suit pending.

3. Where the warrant issues before the rent is due, on the ground that the tenant is seeking to remove his goods from the premises, can he replevyQuare? See Code, sections 2285, 4083; 23 Georgia Reports, 43.

4. Damage to business, or the loss of profits, sustained after commencement of the suit, can form no part of the recovery.

5. The average profits which a tradesman was making when his entire stock was seized, may be considered in estimating his damage for the time, before suit, during which the stock was detained from him, and his business thereby wholly interrupted. Although the profits, as such, would not be

Sturgis & Berry vs. Frost.

recoverable, yet their amount, as a fact, may be considered in estimating

the magnitude of the alleged outrage by defendant.

6. Expenses of setting the stock aside as exempt under the homestead and exemption laws, are not recoverable as damages.

W. W. TURNER; FERRELL & LONGLEY, for plaintiffs in

error.

SPEER & SPEER; ALBERT H. Cox, for defendant.

BLECKLEY, Judge.

A landlord sued out distress warrant against his tenants for rent, and had the same levied upon their goods. The affidavit upon which the warrant issued showed on its face that the rent was not due, but alleged that the tenants were seeking to remove their goods from the premises. The goods consisted of a stock in trade, and they remained some weeks in the custody of the sheriff, who advertised them for sale under the levy. The defendants procured them to be set apart by the ordinary as exempt property under the homestead and exemption laws, and the sheriff surrendered them as the result of that proceeding. Thereupon, the tenants commenced their action against the landlord for suing out the distress warrant maliciously and without probable cause, and for having the same levied, alleging in the declaration, that the landlord's affidavit, in so far as it charged them with seeking to remove their goods from the premises, was untrue; and making divers averments as to damages, etc.

At the trial, the presiding judge non-suited the plaintiffs, the ground of the motion for non-suit being that the action was prematurely brought, it not appearing that the distress warrant proceedings were at an end.