Opinion
18153.
SUBMITTED MARCH 9, 1953.
DECIDED APRIL 14, 1953.
Petition for injunction. Before Judge Boykin. Carroll Superior Court. January 17, 1953.
Matthews, Maddox Bell, for plaintiff in error.
Boykin Boykin, Shirley C. Boykin and Marshall L. Allison, contra.
1. The judgment of the court below sustaining a general demurrer to the petition without a hearing was error.
2. There is no merit in these grounds of the special demurrer.
3. Ground seven of the special demurrer should have been sustained.
No. 18153. SUBMITTED MARCH 9, 1953 — DECIDED APRIL 14, 1953.
On October 16, 1952, Southern Railway Company filed and served its petition against the Town of Temple, W. L. Steadman Jr., as mayor of said town, certain named persons as councilmen of said town, and Mrs. E. S. West, as clerk of the council of said town, seeking to enjoin the defendants from proceeding with certain plans for grading and surfacing certain streets adjacent to the petitioner's right of way, and from assessing to the petitioner its share of the cost of such work in the manner and in the amount which the defendants have undertaken to do, and from certain other acts in connection with the above. Thereafter, the defendants filed their answer to the petition and, within the time provided by law, the petitioner filed special demurrers to the answer, and on January 5, 1953, one ground of the special demurrer was sustained and all others overruled. To this judgment, it excepted.
On the same day, the case came on for a hearing for temporary injunction, and after both sides had presented their evidence, the judge reserved his decision and granted leave to all parties to submit a brief of authorities on or before January 12, 1953. On January 9, 1953, the petitioner tendered to the judge an amendment to its petition which was allowed, subject to demurrer. On January 12, 1953, the Town of Temple et al. filed and served its general demurrer to the petition as amended. On January 17, 1953, without a hearing, the judge of the court below sustained the general demurrer to the petition as amended and dismissed the petition. To this judgment the petitioner excepted. The exceptions here are to the overruling of certain grounds of the special demurrer to the answer and to the judgment sustaining the general demurrer and dismissing the petition.
1. It is contended that the judgment of the court below sustaining the general demurrer and dismissing the petition without a hearing was error. Code (Ann. Supp.) § 81-1001 provides in part as follows: "The judge at any time in vacation after the appearance day of the case shall, upon request of counsel for either party, hear and decide all objections made to the sufficiency of the petition and pleas. . . Such hearing may be had at any place in the circuit after due notice to attorneys for the parties." It will be noted that this Code section provides that the judge shall hear and determine all objections to the sufficiency of the pleadings. It is made mandatory that the judge give the parties an opportunity to be heard.
Furthermore, it is fundamental in our law that no one shall be deprived of his life, liberty, or property without due process of law. The right to be heard in matters affecting one's life, liberty, or property is one of the essential elements of due process of law. See Robitzsch v. State of Georgia, 189 Ga. 637 ( 7 S.E.2d 387); Norman v. State, 171 Ga. 527 ( 156 S.E. 203); Frank v. State, 142 Ga. 741 ( 83 S.E. 645). A ruling on a general demurrer is an action affecting the rights of the parties to a suit as vitally as any action taken in our courts. The rights of a party may be precluded by such a ruling.
Since Code (Ann. Supp.), § 81-1001 provides for a hearing on demurrer, and since it is fundamental that a party has a right to be heard before he can be deprived of life, liberty, or property, we must hold that the judgment of the court below sustaining the general demurrer and dismissing the petition without a hearing was error.
In view of the above ruling, the other questions regarding the general demurrer will not be decided.
2. Grounds 2, 3, 4, 5, and 6 of the special demurrer to the answer have been carefully considered and we have found no merit in any of them.
3. Ground 7 of the special demurrer contends that the paragraph numbered 38 of the answer is evasive and unresponsive to the corresponding paragraph of the petition. Paragraph 38 of the petition alleges that the defendants are preparing to issue bonds in an aggregate amount equal to the assessments remaining unpaid. Paragraph 38 of the answer alleges that the defendants are unable to admit or deny the allegations of that paragraph of the petition because they do not know what the aggregate amount of the unpaid assessments will be. This ground of the special demurrer should have been sustained. The defendants certainly know whether or not they are preparing to issue bonds in the amount of the unpaid assessments. That is a matter which is peculiarly within their knowledge. It was error to overrule this ground of the special demurrer.
Judgment reversed. All the Justices concur, except Atkinson, P. J., not participating.