Cox v. East Tennessee, Virginia & Georgia Railroad , 68 Ga. 446 ( 1882 )

Jackson, Chief Justice.

A non-suit was granted in this case at the close of plaintiff’s testimony, and the error assigned is the judgment of non-suit.

1. The same cause had been brought before and removed to the circuit court of the United States for the northern district of Georgia. There, on trial before that court, at the close of plaintiff’s evidence, a nor-suit was awarded, and thereupon in the state court the suit was renewed, under and by virtue of the six months’ right to renew it under our statute, codified in section 2932 of the Code, which reads as follows: “If a plaintiff shall be non-suited, or shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing as to limitation with the original case.” To be thus renewed it must be the same case as to cause of action and parties; and this is identically the same case in both respects. So that the question is, can a case which has been removed to the United States circuit court be renewed in the state court. We think not, because the act of removal ipso facto transfers he jurisdiction of the cause to the circuit court of the United States, and divests that of the state court. So that by the ruling of the supreme court of the United States in the case of Kern vs. Hindekoper, 13 Otto, 485, at the October term, 1880, all further proceedings in the state courts are coram non judice and void. Therefore, when it appeared that plaintiff himself proved, in order to take his case without the statute of limitations, that it had been removed and adjudicated by the United States court, he proved himself out of court, and was properly non-suited.

2. Moreover the accident by which his wife was injured occurred at a crossing over the railroad which was neither a public road nor a private way established by law. His suit for damages rests on the defect of a bridge over the railroad in his farm by which he crossed from one part to. another of the farm. Section 706 of the Code enacts that, “all railroad companies shall keep in good order at their expense, the public roads or private ways established pursuant to law, when crossed by their several roads, and build suitable bridges, and make proper excavations or embankments, according to the spirit of the road laws.”

By this statute they are to build the bridges and keep in repair the roads, including the bridges so built of course, if those roads are public roads, or if they are private ways established pursuant to law. What private ways are established pursuant to law ? The answer is found in article V., of chapter V., title VI., part I of the Code, which is on the subject of private ways and the manner in which they are established pursuant to law, and a record thereof kept in the road book and the way fully described therein. Section 727 of the Code.

There is no proof that any such private way was established and described and recorded in this case. On the contrary, it is admitted by the plaintiff in his testimony that nothing of the sort was done. Therefore it was not the duty of the railroad company to build and keep in repair this bridge, and it incurred no liability to answer in damages for the accident because the bridge may have been narrower than the law required.

The non-suit was right, then, on this ground also.

Judgment affirmed.