Southwestern Railroad v. Chapman

46 Ga. 538

• Court: Supreme Court of Georgia
• Decided: July 15, 1872
• Status: Published

Opinions

Montgomery, Judge.

I am not satisfied with the decision of the Court as rendered in this case — that the Southwestern Railroad was responsible to the guardian of the minor for the amount of the dividends sued for, and for which the jury found a verdict, is unquestionable. But the plea of the defendant was substantially a plea of set-off for necessaries furnished the infant, and evidence was introduced in support of the plea. No objection was made to the plea that it did not set forth with sufficient distinctness the items of the set-off. If such objection had been made, the plea might have been amended, if necessary. Under this view I think the defendant was entitled to the charge asked, which the Court said was law but not applicable to the case, and that the practice in equity of making all persons interested parties has nothing to do with the case. The Court, as I now think, was misled by looking to the verbiage rather than the substance of the plea. If I am correct, no other party was necessary or proper to be made, but the case should have gone to the jury with instructions to find for the plaintiff whatever amount of dividends he had proved was paid to the executor of Ambrose Chapman unaccounted for, and to the mother and natural guardian of the ward, less the amount of the defendant’s money (if any) shown to have been expended in necessaries for the infant at a time when there was no other source from which to supply her needs. I agree fully with the Chief Justice that both Courts of law and equity are bound by the 1794th section of the Code. But because the railroad vio» lated the provisions of that section, does that estop it from recovering by way of set-off, money paid, laid out, and expended for necessaries to the infant ? I think not. I regret this, what I now conceive to be, mistake of the Court— but less than I otherwise would do from the fact that the railroad has since filed a bill in accordance with the intimation of the Court, which will secui’e its rights if, in fact, any of its money has been expended for necessaries for the ward of the defendant in error. It is not surprising that, in the hot haste with which we are compelled to throw off the decisions of this Court, owing to the heavy pressure of business upon it, some of us should afterward be dissatisfied with its rulings. These are my individual views. The judgment of the Court below stands affirmed as set forth in the head note.

Judgment affirmed.