American Liberty Fire Insurance v. McGlothin

Iiim, J.

1. In tlie municipal court of Atlanta suit was brought upon an insurance policy for a loss sustained by fire, amounting to $250. The officer made a return of service upon the insurer by leaving a copy of the petition and process at the office of the company. The company made an appearance in the court, without excepting to the return of the officer. The ease was duly assigned for trial, and at the appointed time came on for trial, when the plaintiff amended his petition by alleging that the damage caused from the fire was $459.50, instead of $250 as alleged in the original petition. There was no formal service upon the insurer, of the amendment. The trial resulted in a judgment for the insured for the amount alleged to be due by the petition as amended. Held, that the case was within the jurisdiction of the municipal court, and that the judgment was not void for the reason that there was no service upon the insurer of the amendment to the petition.

2. The petition filed by the insurer to enjoin the enforcement of the judgment rendered in the municipal court, on the ground that the judgment was void, failed to allege a cause of action for the relief prayed, and the court did not err in sustaining the demurrer and dismissing the action.

3. The dismissal of the action upon general demurrer was a final disposition of the case, and the judge did not err at the same time in entering up judgment against the insurer and its surety upon the bond for the amount of the judgment obtained in the municipal court, which bond was voluntarily given in order to obtain a restraining order upon presentation of the petition for injunction for sanction by the judge, and which provided that judgment might be entered thereon as in case of appeal should the plaintiff fail in his equitable cause for injunction.

Judgment affirmed.

All the Justices concur. Ray & Ray, for plaintiff. Savage & Crawford, for defendant.