Atlantic & B. Ry. Co. v. Brown

• Decision Date: 18 November 1907
• Citation: 59 S.E. 278,129 Ga. 622
• Parties: ATLANTIC & B. RY. CO. v. BROWN et al.
• Court: Georgia Supreme Court

59 S.E. 278

129 Ga. 622

ATLANTIC & B. RY. CO. v. BROWN et al.

Supreme Court of Georgia

November 18, 1907

Syllabus by the Court.

Though the trial court erred in striking, on demurrer, a paragraph of the answer in which it was averred that defendant, for want of sufficient information, could neither admit nor deny the allegations of a given paragraph of the petition, such error is not cause for a new trial, when, notwithstanding such ruling, plaintiff's submitted ample proof of the truth of such allegations.

[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4114.]

The law applicable to the controlling issues in this case was announced when it was formerly before this court. Brown v. Atlantic & Birmingham Ry. Co., 126 Ga. 248, 55 S.E 24. In view of the rulings then made, the court below, on the subsequent trial of the case in term, did not err, except as indicated in the first headnote, in striking, on demurrer all of defendant's answer except so much thereof as either admitted or denied the allegations of the petition.

[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4358.]

Even though the court may have erred in admitting in evidence over the defendant's objection, a duly certified copy of an original certificate of the Secretary of State, certifying that there was filed in his office original articles of agreement, entered into upon a given date, between three named railway companies, consolidating them under the name of Atlantic & Birmingham Railway Company, and further certifying that there was filed in the office of the Secretary of State, with such agreement, certified copies of the resolutions of the stockholders and board of directors of each of the named companies, authorizing the execution of such articles of consolidation, such ruling was not cause for a new trial, for the reason that the uncontradicted evidence showed, and the answer of the defendant admitted, that defendant was operating, as its own, the section of road which it was sought to show by the copy of the certificate it did own, and defendant also admitted that it intended to tear up and remove the same, and was then engaged in so doing.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4161-4164.]

Where on the trial of an action to enjoin a railway company from "tearing up, removing, or otherwise abandoning" a given section of its line of...