SCENIC HEIGHTS DEVELOPMENT CORPORATION v. Harry , 219 Ga. 253 ( 1963 )

219 Ga. 253 (1963) 132 S.E.2d 711

SCENIC HEIGHTS DEVELOPMENT CORPORATION et al.
v.
HARRY et al.

22111.

Supreme Court of Georgia.

Argued July 9, 1963. Decided September 5, 1963.

W. S. Allen, George C. Kennedy, Wm. G. Grant, Robert W. Spears, for plaintiffs in error.

A. B. Parker, contra.

DUCKWORTH, Chief Justice.

This is the third appearance of this case in this court. See Harry v. Scenic Heights Development Corp., 218 Ga. 352 (127 SE2d 898), and Scenic Heights Development Corp. v. Harry, 218 Ga. 695 (130 SE2d 215). This court in the latter case reversed the lower court and thereafter the petition was amended, and demurrers and objections to the amendment and a motion to dismiss were filed. After a hearing thereon the court overruled the same, and the exceptions are to these judgments. Held:

1. On demurrer, the petition will be construed in accordance with the facts as shown by the exhibits and not in accordance with the interpretations thereof as alleged by the pleader. Strickland v. Lowry Nat. Bank, 140 Ga. 653 (2) (79 S.E. 539); Vandiver v. Endicott, 215 Ga. 250, 251 (109 SE2d 775); Irwin v. Dailey, 216 Ga. 630, 645 (Dissent) (118 SE2d 827). Thus, as shown by the plat attached, the lots from which the plaintiff alleges he has been ousted lie wholly in Land Lot 210, 2nd District of Talbot County even though the pleadings allege these lots are in Meriwether County on land demised to the plaintiff; and the petition shows on its face that the court lacks jurisdiction since the suit was filed in Meriwether Superior Court and not in Talbot Superior Court.

2. No further ruling on the other demurrers and objections will be made since the petition, as amended, was subject to the motion to dismiss.

Judgment reversed. All the Justices concur.