MIDLAND PROPERTIES COMPANY v. Kennedy

100 Ga. App. 37 (1959)

110 S.E.2d 120

MIDLAND PROPERTIES COMPANY v. KENNEDY. SAVANNAH & ATLANTA RAILWAY COMPANY v. KENNEDY. MAYOR & ALDERMEN OF SAVANNAH v. KENNEDY. SAVANNAH ELECTRIC & POWER COMPANY v. KENNEDY.

37664, 37665, 37666, 37667.

Court of Appeals of Georgia.

Decided June 24, 1959.

Rehearing Denied July 17, 1959.

Hitch, Miller & Beckmann, Robert M. Hitch, John E. Simpson, for Midland Properties Co. and Savannah & Atlanta Ry. Co.

Oliver, Davis & Maner, Edwin Maner, Jr., for Mayor &c. of Savannah.

Bouhan, Lawrence, Williams, Levy & McAlpin, for Savannah Electric &c. Co.

Allyn M. Wallace, Aaron Kravitch, Phyllis Kravitch, contra.

NICHOLS, Judge.

1. All but one question presented in the writs of error in the cases sub judice are controlled adversely to the defendants by the decision in Midland Properties Co. v. Farmer, ante, and only this one question which is not so controlled will be dealt with hereinafter.

2. The defendant Savannah Electric & Power Company demurred to a part of paragraph 1 of count 3 of the petition. This *38 paragraph of count 3 adopted various paragraphs of count 1 by express reference and included therein were paragraphs "60, 61, 62, 63, 64, 65 and 66." The demurrer was to the part adopting paragraphs 60 through 66 because count 1 did not contain any such numbered paragraphs.

Not only error but hurt must be shown in order to obtain a reversal of the judgment of the trial court (Gulick v. Mulcahy, 95 Ga. App. 158, 160, 97 S. E. 2d 362), and, "Ordinarily error is presumed hurtful unless it appears to have had no effect upon the result of the trial." Rogers v. Johnson, 94 Ga. App. 666, 682 (96 S. E. 2d 285).

While this obvious typographical error should have been corrected by the plaintiff when it was called to her attention, it is just as obvious that the reference to the nonexisting paragraphs of count 1 could not have harmed the defendant Savannah Electric & Power Company since it could have no effect upon the result of the case. Therefore, the judgment overruling such demurrer can not be reversed. However, since this reference to the nonexisting paragraphs should be stricken from count 3 of the petition direction to do so is hereby given.

Judgment affirmed with direction. Gardner, P. J., Townsend, Carlisle and Quillian, JJ., concur. Felton, C. J., dissents.

FELTON, Chief Judge, dissenting. See dissenting opinion in Midland Properties Co. v. Farmer, ante.