Hancock v. Miller

111 S.E. 80, 28 Ga. App. 387, 1922 Ga. App. LEXIS 535

• Court: Court of Appeals of Georgia
• Decided: March 9, 1922
• Docket: 12680
• Status: Published

Opinion

Jenkins, P. J.

Except as modified by tbe provisions of Civil Code (1910), §§ 2788, 2789, it is tbe general rule tbat before a suit can be maintained against a receiver of a railroad company it is necessary that tbe consent of tbe court appointing him be obtained. Fried v. Sullivan, 27 Ga. App. 326 (108 S. E. 127). The petition in tbe instant ease having failed to show a compliance with this requirement, and not being governed by the provisions of the code sections mentioned, it not being a suit based on tort, for damage to personalty on account of the failure of the defendant to comply with its common-law duty to furnish cars for the transportation of freight within a reasonable time after demand (Southern Ry. Co. v. Moore, 133 Ga. 806, 67 S. E. 85, 26 L. R. A. (N. S.) 851), but under its plain and explicit terms being a suit for breach of a specific contract, wherein it is alleged that tbe defendant failed to furnish the cars by a specified hour on a named day, after having through its duly authorized agent expressly contracted so to do (Chattanooga Southern R. Co. v. Thompson, 133 Ga. 127 (3), 65 S. E. 285; Ga. Northern Ry. Co. v. Snellgrove, 16 Ga. App. 344, 85 S. E. 790), it was subject to the specific ground of defendant’s demurrer raising the question of the court’s jurisdiction to entertain the same.

Decided March 9, 1922.

Action for damages; from Upson superior court — Judge Searcy. July 2, 1921.

James B. Davis, for plaintiff. J. E. Hall, G. J. Bloch, M. H. Sandwich, for defendant.

Judgment affirmed.

Stephens and Hill, JJ., concur.