Atlanta & F.R. Co. v. Blanton

• Decision Date: 21 May 1888
• Citation: 6 S.E. 584,80 Ga. 563
• Parties: ATLANTA & F. R. Co. v. BLANTON.
• Court: Georgia Supreme Court

6 S.E. 584

80 Ga. 563

ATLANTA & F. R. Co. v. BLANTON.

Supreme Court of Georgia

May 21, 1888

Error from superior court, Spalding county.

Mynatt & Carter, for plaintiff in error.

Hall & Hammond, contra.

SIMMONS J.

Blanton filed his bill in Spalding superior court, wherein he alleged that the Atlanta & Florida Railroad Company was constructing a railroad from the city of Atlanta southward, and through a part of Spalding county, and had entered upon the lands of the complainant, and began to grade a railroad bed; that, at the instance of the railroad company, arbitrators were selected, who awarded the complainant $500 for his damages and for the privilege to said railroad company to build its road over and across his lands; that the railroad company appealed from the decision of the arbitrators to the superior court; that it continued to work on said railroad, and would soon reach his lands, and would lay its track thereon and occupy said lands, unless said company, its agents and employes, were enjoined from laying down the railroad track over and across the lands of the complainant. The defendant answered the bill; and, on the hearing, the court below "enjoined the defendant as prayed for in the bill, the injunction to be dissolved on payment of the amount of the award." The defendant excepted, and brought the case to this court for review. When the case was called for hearing in this court, counsel for the defendant in error filed the following motion, which was sworn to by one of the counsel "And now comes the defendant in error, by his counsel and moves to dismiss the writ of error in the above-stated case, on the following ground: Since the granting of the injunction in said case by the chancellor, to which the writ of error was taken, the same has been dissolved by the payment by the plaintiff in error to the defendant in error of the full amount of the damages awarded to the defendant in error, to-wit, the sum of $520.90. Said payment was made February 24, 1888, by Col. P. L. Mynatt, as attorney for said railroad company, to W. R. Hammond, as attorney for B. P. Blanton. The company has constructed its road, and is now operating the same, over the land of the defendant in error, since the injunction was dissolved as aforesaid." Counsel for the plaintiff in error objected to this motion, and insisted that this court could not hear the same; because the matter set up in the motion, as sworn to by said counsel, did not appear in the record of said case as certified to by the judge below, and transmitted to this court by the clerk of the superior court of Spalding county. It was further insisted, in an affidavit of the superintendent of said road, that, if this court should entertain said motion, the case should not be dismissed, because said payment was made under protest, that the work of constructing said railroad had been stopped by injunction, and that, if said money had not been paid, the railroad company would have sustained large damages by reason of having its operations suspended by the injunction.

1. In cases of this kind, we think this court has a right to hear and consider evidence of an accord and...