Cincinnati, N.O. & T.P. Ry. Co. v. Pless & Slade
| Decision Date | 15 January 1908 |
| Docket Number | 758. |
| Citation | 60 S.E. 8,3 Ga.App. 400 |
| Parties | CINCINNATI, N. O. & T. P. RY. CO. v. PLESS & SLADE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
In cases of attachment, the giving of a replevy bond, the filing of a general demurrer, and an answer, without protestation each operates to convert the action from a suit in rem into an action in personam; and the case, so far as obtaining a common-law judgment against the defendant in attachment is concerned, is in the same condition as if there had been an action begun in the usual form followed by personal service.
(a) Where the defendant in attachment has, by any of the methods mentioned above, effected a general appearance in the suit the dismissal of the attachment does not operate to dismiss the suit.
(b) Where the defendant in attachment enters a special appearance and calls in question the validity of the attachment and of the levy thereon, but also gives a replevy bond and enters a general appearance (his surety not complaining), a consideration of the grounds of the special appearance is immaterial.
[Ed Note.-For cases in point, see Cent. Dig. vol. 5, Attachment, § 975.]
A defendant in attachment who has made a general appearance in any of the methods stated in the preceding headnote may, by timely pleadings, nevertheless question the venue of the action or the court's jurisdiction of the subject-matter. He may make any defense he could have made if he had been personally served with process.
(a) A nonresident corporation is, except in certain cases where by statute the contrary is prescribed, subject to suit in any county in this state where it can be served, or where it submits itself to the jurisdiction of the court by a general appearance.
(b) The statutory rule confining suits against railway companies for torts to the county where the cause of action arose does not apply to torts committed beyond the limits of the state by nonresident railway companies.
(c) Foreign corporations are subject to attachment in this state, whether they do business herein or not.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 5, Attachment, §§ 701-704; vol. 12, Corporations, §§ 2601, 2628, 2629.]
Where a shipment of goods is delivered in good order to a common carrier, under a contract that it shall transport them to its terminus and deliver them to a connecting carrier, and the shipment arrives at destination in a damaged condition, and the proof shows that at least a portion of the damage was done by the initial carrier, it will be presumed to have caused the whole damage, until it submits proof to the contrary.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 835-842.]
Error from City Court of Cordele; E. F. Strozier, Judge.
Action by Pless & Slade against the Cincinnati, New Orleans & Texas Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.
On May 11, 1907, Pless & Slade sued out before the city court of Cordele an attachment against the Cincinnati, New Orleans & Texas Pacific Railway Company on the ground of nonresidence, and caused it to be levied on a box car of that company found in the yards of the Atlanta, Birmingham & Atlantic Railway Company at Cordele. During the same month the defendant executed a statutory replevy bond. Subsequently the defendant entered a special appearance and motion to quash the attachment upon many grounds presenting a number of nice propositions of law; but as it is decided that they are not properly before the court for decision, we deem it unnecessary to set them out. The defendant also filed a plea to the jurisdiction, which it protested was likewise filed as a special appearance, and in this plea substantially the same questions were raised. The special appearances, motion to quash, and plea to the jurisdiction were stricken by the court on demurrer. At the first term the plaintiffs filed their declaration in attachment showing that their suit against the defendant company was on account of damages to a shipment of live stock intrusted to it in the capacity of common carrier. To this declaration the defendant filed a demurrer without protestation, and without in any wise declaring it to be filed subject to the special appearances, the grounds being (1) that the defendant is shown to be a nonresident corporation, and is not alleged to be transacting business, or to have an office or agent in this state; (2) that it does not appear that the acts of negligence were committed in Crisp county within the jurisdiction of the city court of Cordele, but it appears that they were committed beyond the limits of the state; (3) that the contract of carriage was made beyond the limits of the state, and the court was therefore without jurisdiction. The court overruled the demurrer. The defendant also filed an answer. Upon its face it was declared to be subject to the demurrer just filed, but was not otherwise limited in its effect as a general appearance. On demurrer the court struck a portion of this answer, which pleaded that the court was without jurisdiction because the defendant was a nonresident corporation not doing business in the state, and because the car levied upon was an instrumentality of interstate commerce. To all of these rulings exceptions were duly preserved. The case proceeded to trial. The plaintiffs proved that they delivered the shipment of live stock to the defendant at Wilmore, Ky. to be transported to Cordele, Ga., and that after an unreasonable delay the shipment arrived in Cordele damaged in certain enumerated particulars. The shipment was made over connecting lines, and the delivery was made by the Georgia Southern & Florida Railway Company. It was also shown that some of the damage occurred before the shipment left the custody of the defendant. The defendant introduced in evidence a duly signed live stock contract in usual form, executed at Wilmore, Ky. but offered no further proof as to how the loss occurred. The plaintiff then introduced that portion of the constitution of the state of Kentucky which provides: "No common carrier shall be permitted to contract for relief from its common-law liability." Upon the conclusion of the evidence, counsel for both parties agreeing that there was no dispute as to the amount of recovery, if any at all was authorized, the court directed a verdict for the plaintiff, and exception to this is taken.
Crum & Jones, for plaintiff in error.
Hill & Royal, for defendant in error.
The giving of the replevy bond was a general appearance by the defendant dissolving the attachment and converting it from action in rem into an action in personam. Thompson v Wright, 22 Ga. 607; Walter v. Kierstead, 74 Ga. 19; King v. Randall, 95 Ga. 449, 22 S.E. 683; Woodbridge v. Drought, 118 Ga. 671, 45 S.E. 266. "When the defendant has given bond and security, as provided in this Code, or when he has appeared and made defense by himself or attorney at law, or when he has been cited to appear, as provided in this Code, the judgment rendered against him in such case shall bind all his property, and shall have the same force and effect as when there has been personal service, and execution shall issue accordingly." Civ. Code 1895, § 4575. Originally at common law all suits were begun by seizure of the defendant's person or property, and the defendant appeared by giving bail. Now suits are for the most part begun by service of process, but in certain cases where it is inconvenient or impossible to serve common process, the law still recognizes the right to seize the property of the defendant for the purpose of compelling an appearance. The attachment is in such cases the process, and whenever the defendant obtains that for which process is designed, namely, notice of the pendency of the action, and, being so notified, appears in any manner which lawfully discloses to the court that he has the notice, the process is functus officii, its regularity and efficiency are no longer in question, and the court having the person of the defendant before it proceeds to trial and to judgment as in actions begun in the ordinary form. The dismissal of the attachment does not operate to dismiss the suit, but the plaintiff may proceed upon his declaration for a common-law judgment. Civil Code 1895, § 4557; King v. Randall, supra. The giving of a replevy bond is a judicial admission of notice equivalent in effect to acknowledgment or waiver of personal service. Camp v. Cahn, 53 Ga. 558; DeLeon v. Heller, 77 Ga. 742. If the attachment is for any reason subject to dismissal, the lien acquired by the levy falls, and the surety on the replevy bond is discharged; but "the attachment, whether good or bad, brings the defendant into court, if he is served with notice, or if he appears and defends, or if he replevies the property, and he remains in court, though the attachment be dismissed." Bruce v. Conyers, 54 Ga. 678, 680. Even after judgment the surety on the bond may complain that the attachment is void; but not the main defendant. See Bank v. Berry, 91 Ga. 266, 18 S.E. 137. The defendant in attachment has the right to...
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