Opinion
18714.
SUBMITTED SEPTEMBER 17, 1954.
DECIDED OCTOBER 14, 1954. REHEARING DENIED NOVEMBER 10, 1954.
Complaint. Before Judge Shaw. Fulton Superior Court. June 11, 1954.
Smith, Kilpatrick, Cody, Rogers McClatchey, Sidney Haskins, for plaintiff in error.
Marshall, Greene Neely, Burt DeRieux, contra.
1. Where, as here, the petitioner, a nonresident railroad, brought an action ex contractu against a resident of this State for the collection of freight charges owing the petitioner, and by cross-action the defendant set off an action ex delicto for negligence, a court of equity will take jurisdiction thereof, under Code § 37-308, and this court has jurisdiction of the writ of error from the lower court. See Hecht v. Snook Austin Furniture Co., 114 Ga. 921 ( 41 S.E. 74); Jacksonville Paper Co. v. Owen, 193 Ga. 23 ( 17 S.E.2d 76).
2. However, where the cross-action prays for damages in a stated amount against the railroad for the alleged failure to notify the consignor within a reasonable time that the consignee had failed to pay the freight charges, resulting in other goods being shipped and the alleged loss of the consignor's accounts due to a petition in bankruptcy being filed against the consignee, the cross-action fails to allege any negligence or violation of any duty of the railroad which caused the loss of the consignor's accounts due to the consignee becoming insolvent and a bankrupt, and the court did not err in sustaining the demurrer thereto and in dismissing the same.
Judgment affirmed. All the Justices concur.