City of Atlanta v. Dooly ( 1885 )

Hall, Justice.

This was an action against the city of Atlanta to recover • damages for tearing down and destroying, without lawful cause or authority, a certain bill-hoard, the property of plaintiffs, who were partners in the business, and were duly licensed bill-posters under the ordinances of said city.

Pending the suit, one of the plaintiffs died, and an order was taken allowing it to proceed in the name of the survivor. The trial resulted in a verdict in favor of the plaintiff for three hundred dollars, and thereupon the defendant moved for a new trial, upon various grounds, which was overruled by the court, and the judgment overruling this motion is brought here upon bill of exceptions and writ of error for review.

1. We have seldom seen a more unauthorized and wanton invasion of private rights by a municipal corporation than this record presents, or one in which it has been permitted to escape with such inadequate damages for the injury inflicted; the verdict returned does not amount to one-half of the actual damage the plaintiffs were shown to. have sustained by the destruction of their property and the reduction of the profits legitimately resulting from, their business; which was interrupted by this ill-advised and hasty action of the city authorities. . Although this business was conducted under a license, for which they' paid, yet the structure which was necessary to its success-: ful prosecution was, upon the ex parte application of a few citizens, ordered by the corporate authorities to be demolished, without affording an opportunity to their licensees • to be heard; and when the- order was about, to be carried into effect, no attention was paid to their remonstrances ■ against the consummation, of the wrong about to be done • to their property and their rights under the license. Their • reasonable proposition to adjust their losses by the city restoring their bill-board, or allowing them to do -so, and remunerating them for a contract which they had secured, amounting to $125, and which they were compelled to relinquish, was rejected. It is evident that, without the permission of the authorities, they could not, without involving themselves in further difficulties, have replaced this bill-board, and that it was not their purpose to allow them to do so.

2. There is no error in the charges, or refusals to charge, at the request of the defendant, of which it has any right to complain; they were fully as favorable to it, and perhaps more so,! than it was entitled to under the law, and the merit of its exceptions thereto- is not altogether apparent.

3. The evidence to which .it objected was not amenable to the complaints made against' it, and should not have been, as it was not, repelled, for the reasons urged for its rejection.

4. There was nothing in the motion to non-suit or to disallow the-amendments offered: to the declarations; these were certainly proper, though they may not have been indespensable to the maintenance of the suit.

5. The remaining question, that the surviving partner could not- prosecute the suit for the benefit of the firm, has scarcely enough virtue in it to save the plaintiff in error from-damages for bringing this writ of error here.

“ When one or more of several parties, jointly interested in the property at the time the injury was committed, is dead, the action,”'says Chitty (1 Plead., 76), “ should be in the name of the survivor, and the executor or administrator of the-deceased cannot be joined, nor can he sue separately ; and therefore, to an action of trover brought by the survivor of three partners in trade, it cannot be objected that the two deceased partners and the plaintiff were joint merchants, and that, in respect to the lex mer~ eatoria, the right of survivorship did not exist, for the legal right of action- survives, though the beneficial interest may not.” To the same effect, and also as to the right of the survivor to prosecute a joint action, where one of the plaintiffs dies during its pendency, see Dicey on Parties to Actions, 402,405. In case of death, the surviving partner has the right to control the assets belonging to the firm, to the exclusion of the legal representatives of the deceased partner, he being primarily liable to the creditors of the firm for their debts, and until the interest of the deceased partner in the firm effects is ascertained and his portion is turned over to his representatives, they can maintain no suit for the recovery of the joint effects; after that is done, they have the right to sue in their own name for such choses in action as have been turned over to them. Code, §1907.

Judgment affirmed.