Cain v. Seaboard Air-Line Railway

67 S.E. 127, 7 Ga. App. 461, 1910 Ga. App. LEXIS 347

• Court: Court of Appeals of Georgia
• Decided: February 22, 1910
• Docket: 2181
• Status: Published

Opinion

Hm, C. J.

A suit was filed against the Seaboard Air-Line Railway on March 23, 1909, and service of process was made on a designated person as “agent of the defendant company,” on March 26, 1909. A timely traverse to this return of service was filed, and in support of the traverse it was shown that the defendant company had been placed in the hands of receivers appointed by the circuit court of the United States for the 5th circuit on January 2, 1908, and was in the possession of the receivers, who were operating it on the date of service. Held:

Action for damages; from city court of Dawson — Judge Edwards. July 24, 1909.

Argued December 8, 1909. Decided February 22, 1910. W. II. Gurr, Calhoun & Ramio, for plaintiff. M. J. Yeomans, R. A. Ilawlcins, for defendant.

1. Service of a suit against a corporation in the hands of a receiver, by serving an agent of the receiver, which agent had formerly occupied the same position for the corporation, is .not good service as to the corporation, (a) because, in order for service upon a corporation to be effective by reason of service upon an agent, the agent must at the time of service be in fact the agent of the corporation; and (6) because when a corporation is in the hands of a receiver who is conducting its business, the agents and employees are no longer those of the corporation, but are the agents of the receiver. Cherry v. N. & S. Railroad Co., 59 Ga. 447; Henderson v. Walker, 55 Ga. 481; Ocean Steamship Co. v. Wilder, 107 Ga. 220 (33 S. E. 179).

2. A certified copy of the order of the United States circuit court appointing the receivers was admissible in evidence to establish the fact of the receivership. Ocean Steamship Co. v. Wilder, supra.

Judgment affirmed.