Savannah, F. & W. Ry. Co. v. Atkinson

• Decision Date: 22 October 1894
• Citation: 21 S.E. 1010,94 Ga. 780
• Parties: SAVANNAH, F. & W. RY. CO. et al. v. ATKINSON.
• Court: Georgia Supreme Court

21 S.E. 1010

94 Ga. 780

SAVANNAH, F. & W. RY. CO. et al. v. ATKINSON.

Supreme Court of Georgia

October 22, 1894

Syllabus by the Court.

1. A petition cast in the form of a bill in equity, and addressed to the judge of the superior court by name, and also to the superior court of the county, is amendable by expunging from the address everything but to the superior court of the county, and by striking out the word "orator" wherever it occurs, and inserting the word "petitioner," and by changing the prayer for subpoena to a prayer for process.

2. The absence of process is immaterial where the defendants have appeared and demurred generally to the merits of the petition. After the hearing and overruling of such demurrer it is too late to move to dismiss the action for the want of process or service.

3. As to the cases provided for by section 3406 of the Code, the residence of a railroad corporation is, for the purposes of suit against it, whether the cause of action be legal or equitable, or partly one or partly the other, no less in the various counties in which its line of railroad is located than in the county in which it keeps its principal office or place of business, and it acquires this breadth of residence as soon as its line is permanently defined and the work of construction commenced; nor is its residence in any given county, after being once acquired, lost by abandoning work in that county, or even abandoning and suspending operations throughout the entire line. Where the consideration of a deed conveying a right of way to a railroad company was, as expressed in the deed itself, the benefits which were expected to accrue to the landowner from the construction of the contemplated railroad, and there was an express promise on the part of the company to construct the road, by virtue of which promise the conveyance was procured, and also a parol license to cut cross-ties induced, a breach of the contract by failing to construct the road, abandoning work upon it, and selling out to a rival company, with intent that the whole enterprise should be suppressed and forever abandoned, constitutes a cause of action in behalf of the landowner to the extent, at least, of having decreed a cancellation of the conveyance, and of having awarded to him compensation for any damage done to the land by severing timber and cross-ties therefrom, and digging up the soil, or by other means, while the work of construction was in progress; and, inasmuch as the alleged purchase made by the second company interested in any decree of cancellation which could be made, this company is a proper party defendant to the action, and, under the act of 1885, may rightly be made a party out of the county of its residence, the suit being appropriately located with reference to jurisdiction over the other company.

Error from superior court, Camden county; J. L. Sweat, Judge.

Action by Burwell Atkinson against the Savannah, Florida & Western Railway Company and another. Judgment for plaintiff, and defendants bring error. Affirmed.

Goodyear & Kay, Erwin, Du Bignon & Chisholm, and W. L. Clay, for plaintiffs in error.

S. C Atkinson and S. R. Atkinson, for defendant in error.

SIMMONS J.

1, 2. The act approved October 24, 1887, requires that "all civil suits begun in a superior court of this state, founded on a legal or equitable cause of action, for a legal or equitable remedy or both, shall be commenced by a petition addressed to said court," and that "the form of process to the petition referred to above shall be that at present required in actions at law." Acts 1887, p. 64. A year after the adoption of this act, a bill was filed, in the old form of equity pleading, addressed to the judge of the superior court by name, and also to the superior court of the county, and praying for subpoena instead of process. The defendants demurred, generally, on the ground that no cause of action was set forth, and upon the special ground, among others, that the plaintiff in bringing this bill had failed to comply with the act above referred to, that the bill was not properly addressed, and that no process was issued thereon. The plaintiff thereupon moved to amend by striking out the address of the judge, and by striking out the word "orator" and inserting "petitioner," and by changing the prayer for subpoena to a prayer for process also to amend the process, which was addressed to the defendant, by adding an address to the sheriff of the county or his lawful deputy. These amendments...