Alabama Midland Railway Co. v. Stevens

Supreme Court of Georgia

Alabama Midland Railway Co. v. Stevens

43 S.E. 46, 116 Ga. 790, 1902 Ga. LEXIS 264

Supreme Court of Georgia·Decided December 12, 1902·Published·Cited by 6 cases

Opinion

Simmons, C. J.

1. The Civil Code, § 4639, which declares that before a writ of certiorari shall issue the party applying for the same, his agent or attorney, shall give bond and good security, means that the bond shall be given by the party himself, or by his agent, either general or special, who is authorized to represent the party in that particular case, or by an attorney whose employment includes services in that case or who is authorized by the party to give the bond.

2. Hence, where a railroad company is dissatisfied with a verdict in an inferior court and applies for a writ of certiorari, the chief clerk in a local freight depot, temporarily acting as station agent in the absence of the regular agent, who is forbidden by the by-laws of the corporation to make any contract binding the company, and such clerk having no authority, general or special, to sign the name of the company to the bond and knowing nothing about the' trial of the case, is not such an agent as is contemplated by the above section of the code ; and where the bond given was executed by him in the name of the company, the certiorari was void. Hamilton v. Ins. Co., 107 Ga. 728.

Argued November 24, Decided December 12, 1902.

Certiorari. Before Judge Spence. Decatur superior court. December 24, 1901.

Hawes & Hawes and D. H. Pope, for the railway company. A. H. Bussell and A. G. Powell, contra.

3. As the certiorari was void on account of-t-he failure to give a valid bond, there could be no ratification of the act of the agent so as to give life to the void proceeding, or to affect the rights of the other party which had attached before ratification. Graham v. Williams, 114 Ga. 716.

4. Inasmuch as the judgment refusing to dismiss the certiorari, complained of in the cross-bill of exceptions, must be reversed, the subsequent hearing was nugatory, and a writ of error to the overruling of the certiorari will be dismissed.

Judgment ou cross-bill of exceptions reversed,; main bill of exceptions dismissed.

All the Justices concurring, except Lumpkin, P. J., absent.

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Simmons, C. J.

1. The Civil Code, § 4639, which declares that before a writ of certiorari shall issue the party applying for the same, his agent or attorney, shall give bond and good security, means that the bond shall be given by the party himself, or by his agent, either general or special, who is authorized to represent the party in that particular case, or by an attorney whose employment includes services in that case or who is authorized by the party to give the bond.

2. Hence, where a railroad company is dissatisfied with a verdict in an inferior court and applies for a writ of certiorari, the chief clerk in a local freight depot, temporarily acting as station agent in the absence of the regular agent, who is forbidden by the by-laws of the corporation to make any contract binding the company, and such clerk having no authority, general or special, to sign the name of the company to the bond and knowing nothing about the' trial of the case, is not such an agent as is contemplated by the above section of the code ; and where the bond given was executed by him in the name of the company, the certiorari was void. Hamilton v. Ins. Co., 107 Ga. 728.

Argued November 24, Decided December 12, 1902.

Certiorari. Before Judge Spence. Decatur superior court. December 24, 1901.

Hawes & Hawes and D. H. Pope, for the railway company. A. H. Bussell and A. G. Powell, contra.

3. As the certiorari was void on account of-t-he failure to give a valid bond, there could be no ratification of the act of the agent so as to give life to the void proceeding, or to affect the rights of the other party which had attached before ratification. Graham v. Williams, 114 Ga. 716.

4. Inasmuch as the judgment refusing to dismiss the certiorari, complained of in the cross-bill of exceptions, must be reversed, the subsequent hearing was nugatory, and a writ of error to the overruling of the certiorari will be dismissed.

Judgment ou cross-bill of exceptions reversed,; main bill of exceptions dismissed.

All the Justices concurring, except Lumpkin, P. J., absent.

Alabama Midland Railway Co. v. Stevens, 43 S.E. 46, 116 Ga. 790, 1902 Ga. LEXIS 264 (Ga. 1902).

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