Opinion
23572.
SUBMITTED JULY 11, 1966.
DECIDED SEPTEMBER 8, 1966.
Complaint for land. Clayton Superior Court. Before Judge Banke.
J. E. B. Stewart, for appellant.
John R. McCannon, for appellees.
Nat Merritt brought a petition in the Superior Court of Clayton County against P. K. Dixon, Chairman of the Board of Commissioners of Roads and Revenues of Clayton County, Terrell Starr, vice-chairman of said board, and James Duncan, a member of said board. Plaintiff Merritt alleged in his petition that the defendants and their predecessors have been guilty of trespassing on certain described lands of the plaintiff by having encroached upon said lands when they caused a road adjacent to his lands to be widened. Plaintiff prayed for (1) a recovery of the land taken, (2) damages to deter further trespassing and (3) attorney's fees.
Defendants filed both general and special demurrers to the petition. The trial court by an order dated April 5, 1966, sustained the general demurrer. There was no ruling upon the special demurrers. Plaintiff filed his notice of appeal and assigns error upon this order. Held:
Art. XI, Sec. I, Par. I of the Georgia Constitution ( Code Ann. § 2-7801) provides in part that "each county shall be a body corporate with such powers and limitations as may be prescribed by law. All suits by or against a county shall be in the name thereof..." Where a suit is brought against the board of county commissioners alleging that the building of a certain road has injured the plaintiff, the suit is intended as one against the county, and where the petition does not name as a defendant the county as a corporate body but instead only names the board of commissioners, who are its agents, the petition cannot be amended and must be dismissed. Arnett v. Bd. of Commrs. of Decatur County, 75 Ga. 782.
The trial court did not err in sustaining defendants' general demurrer to plaintiff's petition.
Judgment affirmed. All the Justices concur.