Mcintosh County Com'rs v. Aiken Canning Co

• Decision Date: 03 August 1905
• Citation: 51 S.E. 585,123 Ga. 647
• Parties: McINTOSH COUNTY COM'RS. v. AIKEN CANNING CO.
• Court: Georgia Supreme Court

123 Ga. 647

51 S.E. 585

McINTOSH COUNTY COM'RS.

v.AIKEN CANNING CO.

Supreme Court of Georgia.

Aug. 3, 1905.

1. Parties—Misnomer—Mode of Objection. _ Where, in a civil case, the party proceeded

against is designated and described by a wrong name, the objection of misnomer should be taken by a plea in abatement, and not by a motion to dismiss.

[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Parties, § 156.]

2. Same—Objections Waived.

Where, in such a case, the party defendant, whether a corporation or a natural person, appears, and pleads to the merits by the true name, without raising the objection of misnomer, the error as to the name of such party is waived.

[Ed. Note.—For cases in point, see vol. 37. Cent. Dig. Parties, § 177.]

3. Mandamus—Questions for Jury.

Where, upon the hearing of an application for mandamus, it appears from the answer of the respondent to the mandamus nisi that issues of fact are involved in the cause, which are material to a proper determination of the same, it is erroneous to grant a mandamus absolute, without submitting such issues to a jury.

[Ed. Note.—For cases in point, see vol. S3, Cent. Dig. Mandamus, §§ 378, 386.]

(Syllabus by the Court.)

Error from Superior Court, Mcintosh County; P. E. Seabrook, Judge.

Application by the Aiken Canning Company for writ of mandamus against the board of commissioners of the county of Mcintosh and city of Darien. From a judgment granting the writ, defendant brings error. Reversed.

The Aiken Canning Company brought a petition for mandamus against "the board of commissioners for the county of Mcintosh and city of Darien, " alleging that the defendant was a corporation, having charge and control of the county affairs of Mcintosh county, Ga. In the petition it was alleged that the petitioner, desiring to transplant oysters, in accordance with the provisions of the Political Code, § 1694, applied by petition to the defendant in the terms of this Code section for its consent and approval of petitioner's proposed action; that the defendant, in violation of petitioner's rights, failed and refused, and still failed and refused, to give its consent and approval as required by law. A copy of the plaintiff's application to the defendant was attached to the petition for mandamus. The prayer was for the writ of mandamus, directed to the defendant, commanding and requiring it to give its consent and approval to the action desired by the plaintiff. The facts alleged in the petition were verified by the affidavit of the general manager of the canning company. A rule nisi was granted on April 20, 1905, requiring the defendant to show cause, etc., on the fourth Monday in May, 1905, and ordered served upon the defendant; and process was issued requiring the defendant to answer the plaintiff's petition at the next term of the superior court of Mcintosh county. On May 15, 1905, the defendant filed its answer, which, after stating the case, began as follows: "And now comes the commissioners of Mcintosh county, a corporation, that has been served as the defendant in the above-entitled cause, and, answering, says, " etc. In this answer the "commissioners of Mcintosh county" admitted that the petition a copy of which was attached to the plaintiff's petition for mandamus was presented to "it, " and that "it" failed and refused to give its consent as therein prayed for, but denied that such refusal was in violation of the plaintiff's rights. It alleged that there was no such territory within the county of Mcintosh as is covered by section 1694 of the Political Code, and to which the defendant could grant theprivileges that had been asked for by the plaintiff, and that all the oyster beds within the limits of the county and within 1, 000 feet of the shore line at mean low tide are either leased, owned by persons, or are such beds as are resorted to by the citizens of the state for procuring oysters for consumption or for sale; and that a mandamus would be nugatory and fruitless, and should, under the Civil Code, § 4870, be refused. The case came on to be tried at the May term of the superior court, when the defendant "moved to dismiss the proceedings in said case as to it, because the petition and rule nisi served upon it was a proceeding against the 'board of commissioners for the county of Mcintosh and city of Darien, ' and not against the 'commissioners of Mcintosh county.' " The court overruled this motion, and the defendant excepted. The plaintiff offered an amendment to its petition, changing the name of the defendant so that it should read "commissioners of Mcintosh county, " which amendment was allowed by the court over the objection of the defendant, to which ruling the defendant also excepted. "Plaintiff then orally moved the court to make the mandamus absolute, claiming that the answer of the defendant did not admit of the introduction of any evidence, and had not raised any question of fact that could be determined at that time; and, after argument of counsel, the court sustained the motion of plaintiff, and adjudged and decreed that the mandamus absolute issue as prayed, " to which ruling and judgment the defendant excepted.

Chas. M. Tyson, for plaintiff in error.

Kay, Bennett & Conyers, for defendant in error.

FISH, P. J. (after stating the facts). 1, 2. The proper method by which to have raised the question made by the motion to dismiss was by plea in abatement, which has not been abolished in this state. But, irrespective of the method adopted, the objection came too late. The defendant had appeared and filed its defense to the merits, admitting in its answer that it had been served as the defendant in the case. All the authorities recognize the dilatory nature of the objection upon the ground of misnomer of the defendant, and the necessity of making it as such. 14 Enc. Pl. & Pr. 296. The objection must be taken in limine, and the cases hold that where a party, whether a natural person or a corporation, is sued under a wrong name, and appears and pleads by the true name, without raising the objection of misnomer, the error is waived, and the defendant will be concluded. Rhodes v. Louisville, 121 Ga. 553, 49 S. E. 681; McCreery v. Everding, 54 Cal. 168; Gilbert v. Nantucket Bank, 5 Mass. 97; City of Kingfisher v. Pratt, 4 Okl. 284, 43 Pac. 1068; Hammond v. Starr, 79 Cal. 556, 21 Pac. 971 (where the defendant was sued as "Ætna Iron Works, a corporation, " when the true name, by which it appeared and pleaded, was "Ætna Iron Works Company"); Board of Commissioners v. Huffman, 134 Ind. 4, 31 N. E. 570 (where the complaint was against "The County of Huntington, " when it should have been against "The Board of Commissioners of Huntington County"); Chicago & Alton R. Oo. v. Heinrich, 57 Ill. App. 399, affirmed 157 Ill. 388, 41 N. E. 860 (where the defendant, the "Chicago and Alton Railroad Company, " was misnamed in the declaration as the "Chicago, Alton and St. Louis Railroad Company"). This rule is especially applicable in this state, where all misnomers in civil proceedings, "whether in the Christian names or surnames, " may, on motion, "be amended and corrected instanter, without working unnecessary delay to the party making the same." Civ. Code, § 5102. This section applies to corporations as well as to natural persons....