Western Railroad v. Davis , 66 Ala. 578 ( 1880 )

SOMERVILLE, J.

The controlling question in this ease-is raised by the refusal of the Circuit Court to give charges numbered 1, 2 and B, as requested, in writing, by the appellant.

The facts of the case show that the appellant corporation was chartered, in the year I860, by the legislature of Alabama, under the name of “ The Western Railroad Company ' of Alabama.” Subsequently, under a power conferred in its-charter, the company mortgaged to certain creditors “ their franchise, and all their other property,” which is specially enumerated, and includes “ the railroad, depots-, machine-shops, the entire rolling-stock, tools and materials of the railroad.” Upon a bill filed in the Chancery Court of Montgomery county, by Josiah Morris and Robert H. Lowry, as trustees for the creditors, there was rendered a decree of foreclosure of said mortgage, or deed of trust; and the said railroad and its franchise, with the other mortgaged property, was sold in September, 1875, and was purchased by two foreign corporations, the Georgia Railroad and 'Banking Company, and the Central Railroad and Banking Company of Georgia. These purchasers, by their agents and officers duly appointed under their authority, went into possession of the purchased property, which was turned over to them by the receiver of the Chancery Court under judicial order, and were controlling and operating the road at the time of the injury in question. The evidence tended to show, that the purchasers were running the road under the old corporate name of “The Western Railroad Company of Alabama;” and there was testimony, also, showing that this was done without authority of the' purchasers, and by neglb gent failure of the officers and agents in charge to comply with superior instructions.

We think these charges ought to have been given. The judicial sale of the road, with its franchise, and all its property, under the decree of the Chancery Court, divested the title and control of it out of the old corporation. The Western Bailroad Company of Alabama had no authority or coutrol over the road, from the time that it passed into the hands of the receiver, who was an officer of the court, It would have been a contempt on their part to have interfered with the custody and control of it, when in the hands of such receiver. The power of control which the old corporation had over the road and property having ceased, it follows, as, a necessity, that no duty legally devolved on it in regard to its continued management. The wrong, or injury complained of, was not the act of “The Western Bailroad Company of Alabama,” and they are not liable for it, under the state of facts contemplated in the charges refused.—Metz v. Railroad Co., 58 N. Y. 61.

We concur with the view taken by the Supreme Court of Pennsylvania, in Plank-Road Co. v. Griffin, 57 Penn. State Rep. 417—a case similar to this — that the purchasers do not, by virtue of the sale, become the corporation, or acquire its name, and their duties can not be enforced by a suit against the corporate company.

Whether the purchasers could be sued under the old company Dame, if they did business and managed the road under it, if there was proper service on their agents, we need not here consider.

Nor is the question material, whether the sale in question operated as a dissolution of the old. corporation, as its existence was expressly preserved by statute for the purposes of this litigation.—Code (1876), § 2027; Tuscaloosa Scientific & Art Assoc. v. Green, 48 Ala. 346.

The court below erred in not sustaining the demurrer of appellant to the replication filed to its pleas. The replication was an entire departure from the issue, and virtually sought to introduce new parties to the suit upon whom there was no service.

Beversed and remanded.