Merritt v. Gate City National Bank , 38 L.R.A. 749 ( 1897 )

Simmons, Chief Justice.

1. This was. an action in the- city court of Atlanta, filed'. June, 12, 1894, and made returnable to- -the July term, 1894, which began on Monday, July 2. The act of November 30, 1892, establishing new terms for that court, provides that, “all cases brought in said 'court shall be re- • tamable to. and triable at the term next ensuing after twenty days have elapsed from the filing, . . . the - purpose of this act being to- require a case to be filed ■twenty days before the term to’ which it is returnable.” (Acts 1892, p. 220.) A plea to the jurisdiction, on the-ground that the suit was not filed twenty days before tíre term to which it was returnable, was stricken by the court, on demurrer; and to this the defendant excepted. The court was right in striking this plea. Counsel for the • plaintiff in error relied upon that section of the- code which ■provides that “when a number of days is pa-escribed for the-exercise of any privilege or the discharge of any duty, only the first or last day shall be counted; and if the last day shall fall on the Sabbath, another day shall be allowed in the computation.” (Code, §4, par. 8.) Here, however, there was nothing to be done on -the- last day; and it therefore made no- difference that it fell on the Sabbath. The provision as to the. time of filing suits in the- city court of ‘ Atlanta is similar to- that which regulates the time of filing - in 'the superior court, the law requiring that actions in the-latter court shall be filed at least twenty days before the term to which they are returnable (Civil Code, §4984); ■and the regular terms of the superior court begin, as do those of the city court of Atlanta, on Monday. Bor nearly a century 'the law with reference to- the superior court has been tire same in this respect as it is mow; yet as far back as our knowledge extends, it has been the practice in that court to treat Tuesday, twenty days before the term, 'as the last return day for the 'term, thus including Sunday as. the last of the twenty days. The uniform practice of the-courts in this respect for a so long a period, if not controlling in the construction of the law, is at toast entitled to' great weight; and we are not disposed at this late day to question its legality, especially since a holding that the practice is wrong would result in wide-spread and incalculable harm.

'2. The defendant further pleaded, that “the alleged plaintiff, the Gate City National Bank, . . has gone into dissolution and is not now in business, and was not so at the time of filing this suit, and as a dead and defunct corporation it has no right to he plaintiff in a suit. The said Gate City National Bank has been dissolved by a forfeiture.of its charter, and by misuser of its franchises.” The plaintiff demurred generally to this plea. The court sustained the demurrer and struck the plea, and to this the defendant excepted. We think this plea was good as against a mere general demurrer. Although the plea does not allege in what manner the charter was forfeited, it will, as against a general demurrer, be presumed that it was forfeited in the manner prescribed by law; and this being so, the action could not he maintained in -the name of the corporation. The corporate right to sue, when not prolonged by statute for the purpose of winding up the affairs of the corporation, dies with the charter. There can he no suit by a 'dead person, whether natural or artificial. In this respect a dead corporation stands upon n«' better footing than a dead man. See VanPelt v. Home Building & Loan Association, 87 Ga. 370; 6 Thomp. Corp. §§6721, 6723, 7370.

3. The court did not err in striking the third plea of the defendant, which was that it was the fault of the plaintiff that the check sued upon was not paid, the reason why it wias not paid being that the plaintiff negligently failed to present it in proper time at the bank upon which it was drawn. It does not appear from the plea that the defendant, 'the drawer of the check, was hurt by the delay; and it is well settled that the drawer of a check upon a bank is not absolved from liability thereon because of any delay in presenting it for payment, when it does not appear that loss resulted to the drawer. Daniels v. Kyle, 1 Ga. 304, s. c. 5 Ga. 245; Patten v. Newell, 30 Ga. 274; Comer v. Dufour, 95 Ga. 378.

On account of the error in striking the plea dealt with in the second division of this opinion, the judgment of the oonrt below is Reversed.

All the Justices concurring.