Ellis v. Southern Express Co.

Supreme Court of Georgia

Ellis v. Southern Express Co.

122 S.E. 48, 157 Ga. 629, 1924 Ga. LEXIS 215

CourtSupreme Court of Georgia

DecidedFebruary 20, 1924

DocketNo. 3714

StatusPublished

Cited by1 cases

This text of 122 S.E. 48 (Ellis v. Southern Express Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ellis v. Southern Express Co., 122 S.E. 48, 157 Ga. 629, 1924 Ga. LEXIS 215 (Ga. 1924).

Pincite

Opinion

Beck, P. J.

We are of the opinion that the first question should be answered in the affirmative. Section 2261 of the Civil Code of 1910, providing for service by publication, is sufficiently complied with where citation in cases where service upon corporations is to be perfected by publication is published in a newspaper in a county where suit is brought once a week for three weeks prior to the court to which the complaint is made returnable, though not during the week immediately preceding the term to which the case is returnable. In the ease of Proudfit v. Oliver, 150 Ga. 707 (105 S. E. 241), it was ruled: “Where in a security deed it was stipulated that a power of sale of the land conveyed could be exercised after advertising ‘once a week for four weeks prior to said date of [631]*631sale/ and advertisement of sale to be made on October 10 appeared in a newspaper issued on September 9, 16, 23, and 30, but no advertisement was published during the following week (that next preceding the date of sale), such advertisement did not conform to the power given in the deed, and the sale on October 10 did not divest the title of the grantor.” And at first blush this ruling seems contrary to the answer above given to the question propounded by the Court of Appeals. But the ruling made in Proudfit v. Oliver, supra, relates to advertisements of the sale of land under a power of sale contained in a security deed. It is probable that the owner of the land and those interested in the sale would look to the paper in which such advertisements appeared the week immediately following, to see if the intention of the donee of the power to exercise the same is to be persisted in and carried out; whereas no such reasoning will apply to one affected by a citation to appear at the term of the court to which the suit against him is returnable. The citation, having been published the prescribed number of times and for the prescribed length of time before the term to which the complaint was returnable, was sufficient.

Assuming, because this is a suit against an express company, that the corporation referred to in the second question is an express company, that question is answered in the affirmative; that is, a domestic corporation with its principal office fixed by its charter in Richmond County, Georgia, can be sued in Bibb County, Georgia, though at the time of the suit it had no office, agent, or agency in Bibb County and was not transacting business there. The conclusion announced follows necessarily from the plain provisions, of section 2385 of the Civil Code. That section reads as follows: “The court sitting in the county where goods are received for shipment, or where goods are to be delivered, shall have jurisdiction over all express companies which now do or may hereafter do business in this State, and the judgment shall bind all the property of said companies.” In the case of Sprinkle Distilling Co. v. Southern Express Co., 141 Ga. 21 (80 S. E. 288), it was said: “The proceeding by mandamus is a civil action, and, when brought against an express company, a domestic corporation, to compel it to receive goods for transportation over its line, must be instituted in the county of the company’s domicile, that is, where its principal place of doing business is located.” But that ruling related to man[632]*632damus proceedings, and the language of the decision following the distinct ruling set forth above indicates that the court was of the opinion that if the suit had been one for damages, the ruling as to the jurisdiction of the court would have been different; for it was said in the opinion in that case: “The language of §2385, to the effect that The judgment shall bind all the property of said companies/ clearly indicates that the cases provided for therein are those where damages, or at least judgments for money, are sought. The present case does not concern goods received for shipment in Muscogee county. The action was brought to require the defendant to receive them. Nor did it have any reference to goods to be delivered in that county. It follows, therefore, that these code provisions do not apply to this case.” It seems to us that the statute has made provision for the óase indicated by the question.

The ruling made in headnote 3 requires no elaboration; the statute itself compels the answer. Park’s Ann. Code, § 4335, and annotations.

All the Justices concur.

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Beck, P. J.

We are of the opinion that the first question should be answered in the affirmative. Section 2261 of the Civil Code of 1910, providing for service by publication, is sufficiently complied with where citation in cases where service upon corporations is to be perfected by publication is published in a newspaper in a county where suit is brought once a week for three weeks prior to the court to which the complaint is made returnable, though not during the week immediately preceding the term to which the case is returnable. In the ease of Proudfit v. Oliver, 150 Ga. 707 (105 S. E. 241), it was ruled: “Where in a security deed it was stipulated that a power of sale of the land conveyed could be exercised after advertising ‘once a week for four weeks prior to said date of [631]*631sale/ and advertisement of sale to be made on October 10 appeared in a newspaper issued on September 9, 16, 23, and 30, but no advertisement was published during the following week (that next preceding the date of sale), such advertisement did not conform to the power given in the deed, and the sale on October 10 did not divest the title of the grantor.” And at first blush this ruling seems contrary to the answer above given to the question propounded by the Court of Appeals. But the ruling made in Proudfit v. Oliver, supra, relates to advertisements of the sale of land under a power of sale contained in a security deed. It is probable that the owner of the land and those interested in the sale would look to the paper in which such advertisements appeared the week immediately following, to see if the intention of the donee of the power to exercise the same is to be persisted in and carried out; whereas no such reasoning will apply to one affected by a citation to appear at the term of the court to which the suit against him is returnable. The citation, having been published the prescribed number of times and for the prescribed length of time before the term to which the complaint was returnable, was sufficient.

Assuming, because this is a suit against an express company, that the corporation referred to in the second question is an express company, that question is answered in the affirmative; that is, a domestic corporation with its principal office fixed by its charter in Richmond County, Georgia, can be sued in Bibb County, Georgia, though at the time of the suit it had no office, agent, or agency in Bibb County and was not transacting business there. The conclusion announced follows necessarily from the plain provisions, of section 2385 of the Civil Code. That section reads as follows: “The court sitting in the county where goods are received for shipment, or where goods are to be delivered, shall have jurisdiction over all express companies which now do or may hereafter do business in this State, and the judgment shall bind all the property of said companies.” In the case of Sprinkle Distilling Co. v. Southern Express Co., 141 Ga. 21 (80 S. E. 288), it was said: “The proceeding by mandamus is a civil action, and, when brought against an express company, a domestic corporation, to compel it to receive goods for transportation over its line, must be instituted in the county of the company’s domicile, that is, where its principal place of doing business is located.” But that ruling related to man[632]*632damus proceedings, and the language of the decision following the distinct ruling set forth above indicates that the court was of the opinion that if the suit had been one for damages, the ruling as to the jurisdiction of the court would have been different; for it was said in the opinion in that case: “The language of §2385, to the effect that The judgment shall bind all the property of said companies/ clearly indicates that the cases provided for therein are those where damages, or at least judgments for money, are sought. The present case does not concern goods received for shipment in Muscogee county. The action was brought to require the defendant to receive them. Nor did it have any reference to goods to be delivered in that county. It follows, therefore, that these code provisions do not apply to this case.” It seems to us that the statute has made provision for the óase indicated by the question.

The ruling made in headnote 3 requires no elaboration; the statute itself compels the answer. Park’s Ann. Code, § 4335, and annotations.

All the Justices concur.

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Bluebook (online)

122 S.E. 48, 157 Ga. 629, 1924 Ga. LEXIS 215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-southern-express-co-ga-1924.

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