Lamb v. McElwaney

Action for damages. Before Judge Daniel. Fayette superior court. March 18, 1914. Paul McElwaney instituted an action for damages for the tortious killing of a mule, returnable to the September term, 1913, of the superior court of Fayette county. The petition alleged that “the Atlanta, Birmingham and Atlantic Eailway Company, hereinafter called the defendant company, . . is now in the hands of two receivers, to wit, H. M. Atkinson and E. T. Lamb, who are sued.as joint receivers of said line of railwajq and who will hereafter be called the defendants;” and that “said defendants, . . by the operation of their train,” committed the injury under circumstances fully set forth. Process was prayed against “said defendant company, through its said receivers.” The process contained the caption: “Paul McElwaney vs. the A., B. & A. Eailroad Co.,” and required “the defendant, A., B. & A. Eailroad Co., through its said receivers,” to appear at the next term of court, “to answer the plaintiff’s demand in an action of complaint.” The sheriff’s return recited that he had “served the defendant with a true copy of the within writ by handing the same to its agent R. M. Hagler, at Tyrone in said county, in person.” At the appearance term the Atlanta, Birmingham & Atlantic Railroad Company filed a traverse to the sheriff’s return, alleging “that the said R. M. Hagler, named as agent for this defendant, is not now, and was not at the time of the said alleged service, agent for -this defendant. . . This defendant moves that said case be dismissed for want of service.” The railroad company filed an answer subject to its traverse. The receivers did not answer or make any appearance. The case was not marked in default. At the March term, 1914, by consent of counsel, the issues upon the traverse and motion to dismiss were submitted to the court for decision, without the intervention of a jury, upon evidence as follows: “It is agreed that R. M. Hagler, at the time of the bringing of said suit and at the time said suit was served upon him, was the agent of E. T. Lamb, the receiver of the A., B. & A. R. R. Company, and the said R. M. Hagler was not the agent of the A., B. & A. R. R. Company at the time of the filing and bringing of said suit and at the time of the service of said suit, but the said Hagler was only the agent for the receivers of said road and was in charge of the railroad office at Tyrone, Ga.” After the facts were so agreed upon and before the decision of the court upon the traverse of the return of service, the plaintiff tendered an amendment' to the process, which was allowed. The amendment purported to insert the words, “H. M. Atkinson and E. T. Lamb, receivers of,” just after the word “defendant” in the process and before the words, “A., B. & A. R. R. Company.” After the allowance of the amendment, the judge entered a judgment which (omitting the formal parts) contained the following: “It is ordered that the A., B. & A. Railroad Co. has not been served with a copy of the suit and process in the within case, and the traverse is sustained as to that issue. The motion to dismiss the ease is refused.” No evidence was introduced, but, the receivers having failed to answer, the judge directed a verdict “for the plaintiff” for the amount alleged in the petition. The railroad company and the receivers filed separate bills of exceptions.