Selma, Rome & Dalton Rail Road v. Harbin

40 Ga. 706

• Court: Supreme Court of Georgia
• Decided: June 15, 1870
• Status: Published

Opinion

McCay, J.

By the Act consenting to and approving the consolidation of these companies, it was expressly provided that each company should continue liable to third persons for all the obligations it had undertaken before the consolidation. This provision of the Act cannot be carried out if the Rome and Jacksonville Railroad has ceased to exist. For the purposes of enforcing its obligations upon it, those whom it owes may treat it as still existing and sue and recover judgment against it. And this is in fact nothing but what the Code had previously enacted: Sec. 1643.

That the new company has undertaken to pay the debts of each of the old companies, is only a new remedy, an additional security given to those who have claims against them. This is not, however, a part of the charter. It is simply a contract of the new company; a valid one, it is true, but still a contract which cannot be enforced against them, except as contracts are enforced against individuals. It only appears to us that there is such a contract by the production of the proof of it, introduced by the defendant in error, in reply reply to the motion. It is purely matter of evidence, and may be denied by the new company in the same way that any other contract it has made or may make, may be denied.

The original judgment on the garnishment was clearly taken against the new company, on their contract without any evidence that there was such a contract, nay, without any notice or any opportunity given to deny it. Nor is it any reply to the motion now made, to say, that though no evidence of the contract was produced, yet the judgment ought to stand because it is now produced.

Suppose a suit brought now against the new company? Could it be sustained without proof that the consolidated company had undertaken to pay the debts of the old companies? Is it liable for them under the Act of 1866, except by its contract?

We think this judgment was illegal. There was no notice to the new company, and no proof that it was liable, or had ever made such a contract as it now appears was made.

•Judgment reversed.