Southern Ry. Co v. Cook

• Decision Date: 10 February 1899
• Citation: 32 S.E. 585,106 Ga. 450
• Parties: SOUTHERN RY. CO. v. COOK.
• Court: Georgia Supreme Court

32 S.E. 585

(106 Ga. 450)

SOUTHERN RY. CO.

v.COOK.

Supreme Court of Georgia.

Feb. 10, 1899.

NRw Trial—Objections—Service oF Process-Traverse op Return—Waiver oF Service—Nuisance.

1. Exception to the overruling of a demurrer to a petition cannot properly be taken in a motion for a new trial.

2. While the entry of an officer of court may be traversed, it is necessary that the officer whose entry is thus attacked should be made a party to the proceeding, and a dismissal of such traverse on the ground that the officer was not a party was proper.

3. Demurring generally to the plaintiff's petition is such an appearance and pleading as to amount to a waiver of all irregularities of the process, or of the absence of process and the service of the same.

4. The petition alleging that a nuisance which had been erected by the defendant caused injuries to the plaintiff's property, and the evidence showing that the nuisance had been erected by a predecessor in title of the defendant, a verdict in favor of the plaintiff was contrary to law.

(Syllabus by the Coma.)

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

Action by I. L. Cook against the Southern Railway Company. Judgment for plaintiff. Defendant brings error. Reversed.

De Lacy & Bishop, for plaintiff in error.

E.D. Graham, for defendant in error.

COBB, J. On June 27, 1896, Cook brought suit in Coffee county against the Southern Railway Company, alleging, in substance: He is the owner of a certain lot of land through which the railroad runs, in said county, and which comprises a field containing about 50 acres of fertile arable land, lying on the western side of, and contiguous to, the railroad. A short distance south of this field, and near the railroad, is a basin or pond, with an outlet extending eastward, through which outlet the water of the basin or pond formerly flowed, without obstruction, across a point where the railroad is now situated, and in no way Interfered with plaintiff's field. The defendant built its railroad bed across this outlet to a certain point upon said lot, so that the outlet is completely stopped up by the roadbed, and the water of the pond or basin thereby prevented from flowing through it, and the defendant has maintained its roadbed across the outlet in this manner, without plaintiff's consent, from January 1, 1894, to the time of filing this suit. By reason of the railroad bed being maintained across this outlet, the water of the pond rises higher than it formerly did, and frequently overflows a large part of the plaintiff's field, so that the plaintiff is deprived of the use of the field for the purpose of tillage, and by reason of these facts the field has been worthless to plaintiff ever since January 1, 1894. In the spring of 1894 plaintiff planted the field in corn, cotton, and other crops, and for two or three months the crops were in fine condition; but about the month of May in that year, during a rainy season, the water in the pond, by reason of the roadbed being across said outlet, rose, and overflowed a large part of the field, thereby destroying plaintiff's crops. The railway company could have prevented this damage by putting a culvert in its roadbed at the point where the roadbed crosses said outlet, but it fails and refuses to adopt this usual and ordinary means of preventing damage to the plaintiff. By reason of the premises, plaintiff has been damaged $1,000, for which he prays judgment. The declaration, as originally filed, alleged: The defendant has not an agent in said county, but has agents in the county of Appling, in the county of Telfair, and In other counties in said state. Upon the petition there was an entry of service as follows: "Georgia, Coffee County. I have this day served the defendant, the Southern Railway Company, by giving H. S. Tucker, agent for Southern Railway Co., a copy of the within and foregoing petition and process, personally, this September 17th, 1896. [Signed] W. M. Tanner, Sheriff Coffee County, Ga." At the October term, 1896, the plaintiff amended the petition by striking from It the allegation that the defendant "has not an agent in said county, " which he alleged was inadvertently made, and by adding the allegation that the defendant at the time of the filing of said petition had, and now has, an agent in said county of Coffee. At the appearance term the defendant demurred to the petition on various grounds, and the demurrer was overruled. The trial of the case resulted in a verdict for the plaintiff for $265, and, a motion for a new trial, filed by the defendant, being overruled, it excepted.

1. One ground of the motion...