Langhorne v. Richmond Ry. Co. 1

• Decision Date: 18 April 1895
• Court: Virginia Supreme Court
• Parties: LANGHORNE. v. RICHMOND RY. CO. et al.1

22 S.E. 159

91 Va. 369

LANGHORNE.

v.RICHMOND RY. CO. et al.¹

Supreme Court of Appeals of Virginia.

April 18, 1895.

Practice?/span>Service of Papers?/span>Railroad Companies?/span>Consolidation?/span>Parties.

1. The right to crave oyer of papers mentioned in a pleading only applies to a deed on the direct operation of which the party pleading relies, and not to other writings mentioned.

2. Where two railroad companies are consolidated under authority, the presumption of law is, until the contrary appears, that the united company is subject to all the liabilities of those out of which it is created, and may be sued thereon under its new name as if no change had been made in the organization of the original corporations.

3. Where two corporations are legally consolidated, an action at law lies against the new company for any debts or torts of the old companies.

4. Plaintiff sued the R. Railway Co. and the R Railway & Electric Co. for an injury done him by the former, alleging that the two companies had been consolidated under authority in the latter company. The declaration stated a cause of action against both companies, but the facts pleaded showed that the injury was inflicted by the former company alone. Held, that the former company was liable for the injury, and the latter company was also liable by reason of the consolidation, but that both could not be sued in the same action; that there was a misjoinder of causes of action and of parties.

Error to circuit court of city of Richmond; B. R. Wellford, Jr., Judge.

On rehearing. Reversed.

For former decision, see 19 S. E. 122.

James Lyons and W. P. De Saussure, for plaintiff in error.

Wyndham R. Meredith and Christian & Christian, for defendants in error.

BUCHANAN, J. This case was decided by this court, at its March term, 1894, and the judgment of the trial court reversed. A rehearing was granted, and in this way the case is again before this court

The plaintiff in error brought an action of trespass on the case in the circuit court of the city of Richmond against the Richmond Railway Company (known also as the Richmond City Railway Company) and the Richmond Railway & Electric Company, for an injury done him by the first-named company.

One of the defendants (the record does not show which) appeared, craved oyer of the writings in the declaration mentioned, and demurred to the whole declaration.

The declaration contains but one count, and that is for an injury alleged to have been done the plaintiff by the Richmond Railway Company. The declaration alleges substantially, after giving a history of the organization of the first-named company, and of three deeds of trust that it had given upon its property, works, and franchises to secure its creditors, that there had been a sale under the second and third deeds of trust, subject to the lien of the first, and thatcertain parties, who were the owners and officers of the corporation, became the purchasers at such sale of its works and property, and continued to carry on the business of said corporation, subject to the first lien or deed of trust, adopting the name of the Richmond City Railway Company, by which last name said corporation has since been known and called; that on or about the 2d day of January, 1882, said Parker Campbell, president of the said Richmond Railway Company, and styling himself president of the Richmond City Railway Company, filed a petition with the common council of the city of Richmond praying for the extension of the charter of the said Richmond Railway Company; that said petition was granted, and on the 17th of May, 1882, said common council of the city of Richmond passed an ordinance extending the charter of the Richmond Railway Company, and continuing to it its powers and privileges until the 31st of December, 1900; that by an act of the general assembly of Virginia passed 17th day of March, 1884, the said Richmond City Railway Company was "recognized" as the same corporation chartered by and under the act of assembly of 20th of March, 1860, and the ordinance thereunder, and contract with the city of Richmond of the 17th May, 1860, and subsequent amendments thereto, under the name of the Richmond Railway Company; that, under and by virtue of statutes of Virginia for such case made and provided, the said defendant the Richmond City Railway Company, by deed dated October, 1890, and recorded in the clerk's office of the chancery court the 20th November, 1890, conveyed to the Richmond Railway & Electric Company all its works, property, and franchises, and, by such sale and the statutes aforesaid, became consolidated with the said Richmond Railway & Electric Company, subject to the following provision, in the said conveyance contained, to wit: "The foregoing conveyance is made subject to the payment by the Richmond Railway and Electric Company of all the liabilities of the party of the first part which may not have been discharged prior to this conveyance."

Preliminary to, and as a part of his demurrer, the defendant craved oyer of all the writings mentioned in the declaration. These writings consisted of deeds of trust, petitions to and ordinances of the common council of the city of Richmond, a deed from the trustees in two of the deeds of trust to the purchasers at a sale made under them, and a deed from the Richmond City Railway Company to the Richmond Railway & Electric Company. None of these writings ought to have been, or could properly be, considered upon the demurrer. The plaintiff did not claim under them. They were mentioned in the declaration by way of inducement or introduction to other matters that it was necessary to allege, and not for the purpose of showing right or title in the plaintiff.

The right to crave oyer of papers mentioned in a pleading applies, as a general rule, only to deeds and letters of probate and administration, not to other writings, and only applies to a deed when the party pleading relies upon the direct and intrinsic operation of the deed. 4 Minor, Inst. (Last Ed.) 1280, 1281; Steph. Pl. 436; 5 Rob. Prac. 132. In Byars v. Thompson, 12 Leigh, 550, 561, 562, which was an action of debt brought on an arbitration bond, the defendants craved oyer of the bond and the award, and demurred; but the court, President Tucker delivering the opinion, said: "Preliminary to and as part of his demurrer, the defendant prayed oyer of the submission, to which he had a right, and which accordingly was read to him. He also prayed oyer of the award, to which he had no right; and, that being also read to him, he objects, as fatal, to the variance between the true date of the submission and the date recited in the award. In the opinion of this court, however, the plaintiff having in his declaration averred that the award was made in pursuance of the submission, that matter was matter of fact for the jury, who might find upon evidence that the date on the face of the award was mistaken."

Whether the Richmond Railway...