Burns v. Horkan

• Decision Date: 09 August 1906
• Citation: Burns v. Horkan, 126 Ga. 161, 54 S.E. 946 (Ga. Aug 09, 1906)
• Parties: BURNS v. HORKAN et al.
• Court: Georgia Supreme Court

54 S.E. 946

126 Ga. 161

BURNS v. HORKAN et al.

Supreme Court of Georgia

August 9, 1906

Syllabus by the Court.

Where three persons were sued as joint trespassers, and two of them filed separate demurrers to the petition, each of which was sustained by a separate order of the court, wherein the case was dismissed as to the particular demurrant, it was sufficient, in a bill of exceptions complaining of these rulings, to assign error thereon as follows: "each of which orders and judgment the plaintiff excepted to, and now excepts, and assigns the same as error." This was equivalent to a separate assignment of error upon each order or judgment, complained of, and was sufficient as to each.

The judgments sustaining these demurrers, being a final disposition of the joint action brought by the plaintiff could be brought to the Supreme Court for review, while the case was still pending in the court below against the other defendant.

One who procures or assists in the commission of a trespass, or does an act which ordinarily and naturally induces its commission is liable therefor as the actual perpetrator.

The action, being for trespass, was not barred by the statute of limitations, as it was brought within four years from the commission of the acts complained of.

In an action for trespass upon realty, it is not necessary for the plaintiff to set forth in his petition, or attach thereto, an abstract of the title upon which he relies.

One who commits a trespass for or in behalf of a corporation is himself liable therefor.

Error from Superior Court, Colquitt County; R. G. Mitchell, Judge.

Action by Edward Burns against George A. Horkan and others. Judgment for defendants, and plaintiff brings error. Reversed.

In trespass on realty, it is not necessary for plaintiff to set forth in his petition, or attach thereto, an abstract of the title which he relies on.

Edward Burns brought an action against George A. Horkan, G. F. Taylor, and C. E. Martindale, to recover damages alleged to have been sustained by him "by a willful trespass in cutting the sawmill timber on" a described lot of land in Colquitt county, "and removing and disposing of said timber." The petition also made the following allegations: The timber at the time of such cutting and removing was the right and property of the petitioner. In 1896 he purchased all of the timber on this lot, suitable for sawmill purposes, from J. L. Carman, who derived title from W. C. Vereen, who had a good and valid title to the land. On or about February 8, 1901, defendants Taylor and Martindale, "with perhaps others, unknown to petitioner, were conducting a sawmill business in Colquitt county, under a charter, as the Standard Sawmill Company, but *** Taylor and Martindale were the leading and controlling persons and managing officers of said concern, and *** since that time they have ceased to do business as such corporation, the same having been dissolved as petitioner is informed," and Taylor is conducting business on his own account at the old site of the company's business, and Martindale in Thomas county, Ga. "About the date above stated the said Horkan, in furtherance of a scheme previously planned, did combine and confederate with the said Taylor and Martindale, as the controlling persons of said corporation, to take said sawmill timber on said lot, *** the same being then and there the property of petitioner, without lawful warrant or authority, and in doing so acted as willful trespassers." In furtherance of this scheme, Horkan executed "a paper to said company, in which he pretended to convey to it the sawmill timber on said lot of land." About "said date in February, 1901, and afterwards during that year, the said defendants, by their servants, agents, and employés, acting on said pretended conveyance, did enter upon and proceed to cut and remove the said sawmill timber from said lot of land"; and by so doing injured and damaged the petitioner in the sum of $20,000, which sum was the value of the timber, cut into lumber, at the time it was cut and disposed of, without deduction for defendants' labor and expense. During the year 1901 the defendants cut from said lot, of the sawmill timber thereon, which was the property of the petitioner, "500,000 feet of unusually large and valuable sticks of timber, worth at the mills where cut the sum of $15 per 1,000 feet, making a total value of $7,500. *** The cost of cutting the same was not exceeding $1,500, so that the net value of this lot of timber of plaintiff's cut by defendants, after deducting the value the defendants added by cutting it, was $6,000 at the time it was cut, and at the time of bringing this suit. Besides "this lot of very large timber, the said defendants did, about the same time and afterwards, cut from said lot other timber and convert the same into lumber, the value of which, after deducting the value of the labor put upon it by the defendants, was, at the time it was cut, and at the time of bringing this suit, at least the sum of $6,000." So, "even if defendants were unintentional and innocent trespassers, they have damaged and become liable to petitioner in the sum of $12,000, by reason of the cutting and taking away of petitioner's said timber from said lot of land."

Horkan and Taylor filed separate demurrers to the petition. Each demurrer alleged that the petition showed no cause of action against the demurrant; that it showed that he was not a party to any of the acts complained of, and failed to show that he was ever in possession of any of the timber in question, or lumber derived therefrom. Horkan's demurrer was also upon the grounds that no sufficient abstract of title was set out in the petition or attached thereto; and that the suit was barred by the statute of limitations; having been brought more than two years after the acts complained of. Pending the demurrer, the plaintiff amended his petition by alleging "that said timber was standing timber growing upon said land." The court sustained each of the demurrers, and dismissed the petition as to each of these defendants. The plaintiff excepted.

J. H. Merrill, for plaintiff in error.

Shipp & Kline, for defendants in error.

COBB P.J.

1. When the case was called here, defendant in error Horkan made a motion to dismiss the writ of error. The grounds of this motion were: There is no sufficient assignment of error as against him. There is no separate assignment of error on the order sustaining his demurrer. The plaintiff in one assignment attempts to assign error on two separate and distinct orders of the judge below, one being the order sustaining the demurrer of Taylor and the other the order sustaining the demurrer of Horkan. There has been no final disposition of the case in the court below; it being still pending there against Martindale. Taylor also made a motion to dismiss the writ of error, based upon the same grounds. These motions are without merit. Error is assigned in the bill of exceptions as follows: "After the allowance of the amendment to the petition, the court heard the demurrers, and passed an order sustaining the entire demurrer of each of the defendants and dismissing the case; each of which orders and judgment plaintiff excepted to, and now excepts, and assigns the same as error." The court passed two orders, one sustaining the demurrer of Horkan and the other sustaining the demurrer of Taylor, and, as we have just seen, the assignment of error is "each of which orders and judgment plaintiff excepted to, and now excepts, and assigns the same as error." This is equivalent to a separate asignment of error upon each of these orders, and is a sufficient assignment as to each.

2. The plaintiff sued Horkan, Taylor, and Martindale as joint trespassers; and when the court sustained the demurrers of Horkan and Taylor and dismissed the suit as to them, there was a final disposition of the case as brought by the plaintiff. His joint action against three was transformed into a separate action against one; and if he submitted to the rulings of the court, the joint action which he brought would be forever at an end, and he could only proceed against the remaining defendant...