The City Of Atlanta v. Grant

• Decision Date: 31 July 1876
• Citation: 57 Ga. 340
• Court: Georgia Supreme Court
• Parties: The City of Atlanta, plaintiff in error. v. Grant, Alexander& Company et al, defendants in error.

57 Ga. 340

The City of Atlanta, plaintiff in error. v. Grant, Alexander& Company et al, defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1876.)

[Jackson, Judge, on account of relationship to some of the parties defendant, did not preside.]

Railroads. Corporations. Levy and sale. Executions. Illegality. Injunction. Judgments. Amendment. Lien. Before Judge Peeples. Fulton county. At Chambers. August 20th, 1876.

The City of Atlanta filed its bill against Grant, Alexander & Company, making, in brief, the following case:

Complainant is interested in the corporation known as the Western Railroad Company, either as a stockholder or creditor, to the amount of $300,000 00. In the year 1854, said company was incorporated for the purpose of constructing a railroad from the city of Atlanta, through or near Villa Rica, or Carrollton, in Carroll county, and beyond, westwardly, to the Alabama line, and authority was granted to it to build the road, to equip, use and enjoy it, with all the rights, etc., granted to the Central Railroad and Banking Company. The complainant subscribed to the stock of said Georgia Western Railroad to the amount of $300,000 00. The road was located through the counties of Fulton, Cobb, and a part of the way through the county of Carroll. The right of way was secured by deeds from the owners of lands over which the road was to run, and covered the fee simple title for railroad purposes.

On the 4th of May, 1872, a contract was entered into between the company and the defendants for the construction of the road from the city of Atlanta to the Alabama line. By an act of the legislature, the company was authorized to construct the road on the right of way of the Western and Atlantic Railroad within, and adjacent to, the city of Atlanta, and to any distance east of the Chattahoochee river. Said right of way is the property of the state, and the right to use the same was alone granted to the Georgia Western. The defendants entered upon the work and prosecuted it until the early part of the year 1874, when it was suspended. The road was constructed into Carroll county, but not to the state line. *On the 18th of April, 1874, the defendants filed, in the clerk\'s office of Fulton county, a claim of lien, as contractors, for their work and materials, on the grading, culverts and appurtenances of the road, and the premises or real estate on which it was erected, together with the depot grounds and all other real estate connected with the road or belonging to the company, including the right of way and the franchises thereof. The amount alleged to be due them was $40,699 87, besides interest. Similar claims of lien were filed in the clerks\' offices of Cobb and Douglass counties on the 5th of they following. It does not appear from the papers when the work was completed. It is stated in the claim of lien that it wascompleted since the 1st of March, 1874, and in the declaration based thereon, it is averred that the indebtedness existed on the 16th of March, 1874. Complainant is informed and believes that there was no work done after the 1st of March, 1874. At the date of the contract, and at the dates of doing the work and furnishing the material, the law required the record of the claim to be made within thirty days after the completion of the work. This was not done. In any event, had the law been complied with, the lien could extend only to the railroad, and could not be rightfully extended to any of the other property described in the claim. As to the railroad itself, the description of it in the claim was too loose and indefinite, it being described only as commencing at the city of Atlanta, in said county of Fulton, and extending partly along the line of the Western and Atlantic Railroad, westwardly, through the counties of Fulton, Cobb and Douglass, toward the state of Alabama. On the 17th of September, 1874, a suit was commenced in Fulton superior court, by the defendants, for the enforcement of their supposed lien. The next term of the court was to convene on October 5th, which was less than twenty days from the filing of the petition. No process appears to have been subsequently issued in the cause. Attached to the petition there is what purports to be process, but it is dated July 17th, 1874. The company never appeared or made defense in the cause. On the 10th of April, *1875, a judgment was rendered by the court without the intervention of a jury. The amount of the debt was fixed, and it was further determined that the plaintiffs (Grant, Alexander & Company) had a lien, which was thereby foreclosed, on "the grading, culverts, and appurtenances of the Georgia Western Railroad, and the premises or real estate on which said railroad is erected or built, together with the depot grounds and all real estate connected with said road, including the right of way and franchises of the defendant."

This judgment was void, because the court, without the intervention of a jury, had no jurisdiction to determine the questions of fact involved except as to the amount of the debt. The law gave no such lien. The right of way was a fee simple title to lands, and the lands were nowhere described. The franchises of the company were not the subject of levy and sale. It did not appear when the debt became due, nor what the contract was. If the declaration was filed on September 17th, 1874, the judgment was rendered at the appearance term. No effort was made by any of the officers of the company to avert this judgment. Subsequently an execution issued in which the sheriff is commanded to seize the property according to the description in the judgment. On July 3d, 1875, a...