Lamb v. McElwaney

85 S.E. 705, 143 Ga. 490, 1915 Ga. LEXIS 495

• Court: Supreme Court of Georgia
• Decided: June 15, 1915
• Status: Published

Opinion

Atkinson, J.

1. Though the language of the petition and process is equivocal, properly construed it sufficiently appears that the process refers to the petition and includes the receivers who were sued as parties defendant. So construed the process was valid. Carey v. Hillhouse, 5 Ga. 251; Turpin v. Taylor, 143 Ga. 224 (84 S. E. 547). On its facts the case differs from that of Neal-Millard Co. v. Owens, 115 Ga. 959 (42 S. E. 266).

(а) In order to remove equivocal features and give symmetry to the record, the court properly allowed the amendment. Carey v. Hillhouse, supra.

(б) The service of the petition and process upon the agent of the receivers was a valid service upon the receivers. Civil Code, §§ 2788, 2789.

2. The order allowing the amendment, together with the judgment sustaining the traverse to the sheriff’s return, as effectually removed the railroad company from the case as if in terms it had been dismissed from the suit, and it was unnecessary' for the railroad company to sue out a writ of error to this court to review the judgment refusing to dismiss the case. Accordingly, that writ of error is dismissed.

3. The damages claimed in the case being unliquidated, it was necessary to a recovery by the plaintiff to prove the amount of damages, although the receivers did not file any plea or answer. Civil Code, § 5657; Cooley v. Tybee Beach Co., 99 Ga. 290 (2), 291 (25 S. E. 691). There being no evidence demanding a verdict for any given amount, it was error to direct a verdict for the amount alleged in the petition.

Judgment reversed in the first case. Writ of error dismissed in the second.

All the Justices concur. J. W. Culpepper and Colquitt & Conyers, for plaintiffs in error. J. W. Wise, contra.