Others v. Others

• Decision Date: 31 January 1856
• Docket Number: No. 78.,78.
• Citation: 19 Ga. 427
• Parties: Virgil Powers and others, plaintiffs in error. vs. James W. Armstrong and others, defendants in error.
• Court: Georgia Supreme Court

19 Ga. 427

Virgil Powers and others, plaintiffs in error. vs. James W. Armstrong and others, defendants in error.

No. 78.

Supreme Court of the State of Georgia

JANUARY TERM, 1856.

Application for injunction, in Macon Superior Court. Decision by Judge Powers, at Chambers, 15th November, 1855.

This bill was filed by Virgil Powers, Daniel W. Vischer and Jacob G. Vischer, alleging that in 1852, the Legislature incorporated "The Oglethorpe Bridge & Turnpike Company, " for the building a bridge and turnpike across the Flint River, near the City of Oglethorpe; that by the charter, a provision was made for ascertaining the value of land taken for this purpose; and the award provided therein, was to operate as a judgment against the company, and be enforced by execution; that in March, 1853, James W. Armstrong filed his bill against the company, alleging that he owned lands on both sides of the river; and also, a ferry worth $15,000, which would be utterly destroyed by the erection of the bridge; that the destruction of timber by the company, would amount to $3,000 more. The bill prayed a perpetual injunction. The injunction was afterwards, by order of the Court, dissolved, by the company's giving bond, with good security, to the amount of $20,000. On 21st December, 1853, complainants contracted with the company for the building of their bridge, and proceeded to do the work; and that on a settlement, on the 13th January, 1855, the company acknowledged themselves to be due to complainants, the sumof $9,808.04. The bill farther charged, that Armstrong failed and refused to have his damages assessed under the charter, until complainants had made considerable progress in their work, and then certain appraisers were appointed, who awarded to Armstrong $6,000. The bill suggested that this award was void—1st. Because the appraisers were sworn by a Notary Public; and 2d. Because the award did not set apart any specified quantity of land, as required by the charter. From this award, the company appealed, and the proceedings were dismissed. Subsequently, Armstrong, of his own accord, summoned the same appraisers, who made the same award again. The company again appealed.

At September Term, 1855, of Macon Superior Court, complainants obtained a judgment against the said company for the said balance due them; but the Court having adjourned till 2d Monday in January, 1856, a fi. fa. could not issue thereon. At October Term, 1855, of Dooly Superior Court, Armstrong knowing the foregoing facts, fraudulently combined with the company to release them from all damages, on the Macon County side of the river, if they would confess judgment for the said last award of $6,000; and farther agreed, also, to release certain of the securities to the said bond of $20,000. At the same term, an order was taken by the fraudulent consent of said parties, appointing three commissioners to sell the bridge and the land attached thereto, for cash, on 1st Tuesday in December, 1855; that this confession of judgment was made by two Attorneys, who were securities on the said bond for $20,000, without the consent or authority of the company. Complainants charge that theirs is the oldest judgment lien; and moreover, in Equity, they are entitled to a lien, as the builders and furnishers of materials for said bridge; that Armstrong ought, at least, to be compelled to exhaust the fund provided for him, in the bond for $20,000, before appealing to this, the only fund of complainants. The prayer was for an injunction.

Judge Powers refused to sanction the bill, and this decision is assigned as error.

Scarborough; Miller & Hall, for plaintiffs in error.

Fish, for defendants.

By the Court. —McDonald, J., delivering the opinion.

The complainant contracted with the Oglethorpe Bridge & Turnpike Company to build a bridge across Flint River, at or near the ferry known as Traveller's Rest Ferry. They proceeded with their contract, and built the bridge on the land of James W. Armstrong, the defendant. The company and Armstrong could not agree as to the value of the land, and a proceeding was instituted under the charter to assess it, which resulted in the confession of judgment by the company to Armstrong, in the sum of $6,000; which proceedings, the complainants charge to have been collusive, irregular and fraudulent; and that the damages were excessive and exorbitant, and that the company is insolvent. The Circuit Judge refused to sanction a bill praying an injunction, and that refusal is made the ground of error. A few leading views of the prominent points which appear in the record, will be sufficient to determine the propriety of the decision of the Court. Armstrong, the defendant, is the owner of the land on which the bridge is built; he has never been paid for the land on which it is erected; he has got a confession of judgment against the company, and the company, according to complainants' allegations, is insolvent. Complainants have obtained judgment also on their contract with the company, for building the bridge. An appeal has been entered from that, and complainants claim a lien superior to defendants.

It was insisted in the argument, that under the law, the confession of judgment by the company to Armstrong, vests in the company the fee simple title to the land in question, and leaves to Armstrong a judgment against the company, as the consideration for his land. If the literal construction of the Act be the true one, and if that be the literalconstruction of it, we have no hesitation in saying it is void. The Legislature can not thus divest a man of his property, against his will, without compensation. It is still Armstrong\'s property.

The title to the land, then, is still in Armstrong; it has never been out of him; his is not a lien, but a property. Does the judgment obtained by complainants against the company, create a lien on Armstrong's property? That can not be, for Armstrong is no party to the judgment; and the property upon which it is said the lien attaches, is not now, nor has it ever been the property of the defendant. But it is said...