Richmond & D. R. Co v. Benson

• Decision Date: 21 November 1890
• Parties: Richmond & D. R. Co. v. Benson et al.
• Court: Georgia Supreme Court

86 Ga. 203

12 S.E. 357

Richmond & D. R. Co.

v.Benson et al.

Supreme Court of Georgia.

Nov. 21, 1890.

Carriers—Loss of Goons—Act of God—Amendment of Process—Damages.

1. A carrier is liable for goods lost by the act of God after its refusal to deliver to the consignee on presentation of the bill of lading, though the goods were marked by number only, and the delivery was refused because the waybill giving the name of the consignee had not been received when the demand was made, and the contract exempted the carrier from liability for wrong carriage or delivery of goods marked by initials or numbers.

2. The declaration prayed for process requiring the defendant to appear at the August term. The process attached was dated July 16, 1889, and required the defendant to appear at the court next to be holden "on the first Monday in July, 1889." The defendant appeared at the regular term commencing on the first Monday in August, and moved to dismiss. Held, that the process was amendable, under Code Ga. § 206, subd. 6, giving the court power "to amend and control its process and orders so as to make them conformable to law and justice."

3. In an action against a carrier for loss of goods, where it appears that defendant did nothing bat appear in court and insist on what it claimed in good faith as its legal rights, a new trial will be granted, unless the plaintiff remit an attorney's fee awarded in addition to actual damages, on the ground that the defendant had been stubbornly litigious, and put the plaintiff to unnecessary expense.

Error from city court, Richmond county; Eve, Judge.

Pope Barrow, for plaintiff in error.

J. S. & W. T. Davidson, for defendants in error.

Simmons, J. Benson & Co. sued the railroad company for damages occasioned by the loss of certain goods described in the declaration. The process attached to the declaration commanded the defendant "to be and appear at the city court of Richmond county, next to be holden in and for the county aforesaid, on the first Monday in July, 1889;" and was dated July 16, 1889, and signed by the clerk of the city court. The regular term of the court was the first Monday in August. The defendant, by its counsel, appeared at the regular term, and moved to dismiss the case because the process was void. On motion of plaintiffs' counsel, the court allowed the process to be amended; and to this ruling the defendant excepted pendente lite, and assigned error thereon. The trial was had, and the jury returned a verdict for the plaintiffs. The defendant moved for a new trial, on the grounds set out in the motion, which was refused, and it excepted.

1. We do not think the court erred in allowing the process to be amended. We do not agree with counsel for the plaintiff in error that the process was void, and therefore not amendable, under section 3490 of the Code. The declaration prayed for process requiring the defendant to be and appear at the August term of the court, and the process was issued in the name of the judge of that court, and signed by the clerk thereof; but by a clerical mistake the defendant was cited to appear the first Monday in July, instead of the first Monday in August. The court had jurisdiction of the case, and it seems from the record that the process was sufficient to bring the defendant to the regular term of the court, at which time it made this motion to dismiss. Among the powers conferred upon every court by the Code (section 206, subd. 6) is the power "to amend and control its process and orders, so as to make them conformable to law and justice." In the case of Towns-end v. Stoddard, 26 Ga. 430, where the process required the defendant to appear on the second Monday in April, and the time fixed by law for holding the court was the fourth Monday in April, this court held the process amendable. In Covington v. Cothrans, 35 Ga. 156, it was held that an attachment issued on the 3d of April, 1866, returnable to the "inferior" court, was amendable by inserting the word "county" instead of "inferior." Walker, J., in delivering the opinion of the court, said: "The defendant was not ignorant of the court to which the process was returned, for he appeared at the proper term, and objected to the proceedings, because a single word 'inferior' had been used, by the mistake of a ministerial officer, for the word 'county.' The time for such trifling is past. " In the case of Blake v. Camp, 45 Ga. 298, an attachment was sued out, returnable by law to the 1120th district G. M., but the magistrate, by mistake, made the attachment returnable tc the 919th district. The levying officer returned the papers to the proper district, to-wit, the 1120th, and judgment was then entered upon the attachment. It was held that the judgment was not void, and McCay, J., said: "We do not think this mistake makes the proceedings void. It is not the written direction to the sheriff or constable which gives the court jurisdiction, but the law. If the officer had obeyed the direction, and returned the papers, as directed, the court to which it would then have been returned would not have had jurisdiction, and the judgment would have been void. As it is, the court which tried the case was authorized to do so by the statute. Our statute of amendments is very broad. No technical objections even to a process are to be regarded, if the court has jurisdiction." In the case of Williams v. Buchanan, 75 Ga. 789, the original process required the defendant to appear " on the second Monday in April next, " but, by mistake, the copy process required him to appear "on the second Monday in December next. " The process was dated December 28th. The following April was the time of the regular term, and no term of the court was to meet in December. It was held that service of this declaration and copy process was sufficient to put the defendant on notice of the case. Jackson, C. J., in the course of the opinion said: "When a man knows that he is sued, and is served with a copy of the declaration, which tells him what he is sued for, and in what court, it would be...