The Eagle & Phenix Man'f'g Co. v. West

• Decision Date: 31 August 1878
• Citation: 61 Ga. 120
• Court: Georgia Supreme Court
• Parties: The Eagle & Phenix Man'f'g Company et al. v. West et al.

61 Ga. 120

The Eagle & Phenix Man'f'g Company et al. v. West et al.

Supreme Court of the State of Georgia

(August Term, 1878.)

Equity. Jurisdiction. Stock. Practice in the Superior Court. Practice in the Supreme Court. Evidence. New trial. Before judge Wright. Decatur Superior Court. May Term, 1878.

*Repcrted in the opinion.

Peabody & Brannon; GurlEy & TownsEnd, for plaintiffs in error, cited Code, §§ 2237, 3403; 40 Ga., 408; 43 Ib.. 598, contrasting 34 Ib., 53 and 37 Ib., 346; Code, § 3889.

Fleming & Russell, for defendants, cited Code, §§ 3403. 5120, 3888, 3892; 46 Ga., 138; 31 Ib., 625.

Jackson, Justice.

This was a bill filed by the heirs of John West to recover certain shares of stock in the Eagle & Phenix Manufacturing Company of Columbus, alleged to have been illegally sold at private saw by James N. West, who was the Georgia admin

istrator on said estate. The intestate died in Kentucky, and there was administration there on the bulk of the estate by Robert West, out of the heirs. The verdict was for the complainants, a motion was made for a new trial, it was overruled by the presiding judge, and this refusal to grant the new trial is the complaint before this court.

1. That motion is predicated upon various grounds, and those insisted upon and pressed here will be reviewed by us. The first point is the overruling the demurrer, which was that the superior court of Decatur did not have jurisdiction of the case, but that the suit ought to have been brought in Muscogee, where the manufacturing company was located. The demurrer went upon the idea that the stock is real estate, and the title to it is involved, and therefore, under the constitution, the suit should be brought where the real estate is located.

It is true that under the Code, section, 2237, this stock being in a manufacturing company, "whose principal investments are in realty and machinery attached thereto, " is deemed realty; but the law is that an equity cause may be brought in the county inwhich any defendant resides, against whom substantial re-lief is prayed, and in this case *to set aside this sale, the suit is brought where one defendant lives, against whom such relief is prayed, and who is charged with having illegally sold the stock in controversy, and where three other defendants live, against whom substantial relief is prayed. The decisions in 34 Ga., 53, and 37 Ga., 346, substantially cover the principle involved in the facts of this case, and we cannot say that the court was wrong in overruling the demurrer.

2. The second ground is, that the court erred in permitting the clerk to make an entry in certain interrogatories nunc pre tunc, upon evidence by the clerk and others that the same had been property received, and remained in office, undisturbed ever since.

We see no error in this. The proof was conclusive, and the entry of the clerk of what actually occurred might well be made, when he had omitted to do so at the right time, nunc pre tunc.

3. The next ground of error is, that the court erred in portions of the charge to the jury. These are not set out in the motion, but only designated as being on certain pages of the charge, and beginning at such words and ending at others. On examining the record, we cannot ascertain the parts of the charge excepted to. We have held that the whole charge cannot be excepted to unless it is all...