Cincinnati, New Orleans & Texas Pacific Railway Co. v. Pless & Slade , 3 Ga. App. 400 ( 1908 )

Powell, J.

(After stating the facts as above.)

The giving of the replevy bond was a general appearance by the defendant, dissolving the attachment and converting it from an •action in rem into an action in personam. Thompson v. Wright, 22 Ga. 607; Walter v. Kierstead, 74 Ga. 19; King v. Randall, 95 Ga. 449; Woodbridge v. Drought, 118 Ga. 671. “When the defendant has given bond and security, as provided in this code, or when he has appeared and made defense by himself or attorney •at law, or when he has been cited to appear, as provided in this ■code, the judgment rendered against him in such case shall bind •all his property, and shall have the same force and effect as when there has been personal service, and execution shall issue accordingly.” Civil Code, §4575. Originally, at common law, all suits were begun by seizure of the, defendant’s person or property and 'the defendant appeared by giving bail. Now suits are. for the most part begun by service of process; but in certain cases where it is inconvenient or impossible to serve common process-, the law •still recognizes the right to seize the property of the defendant for the purpose of compelling an appearance. The attachment is in such cases the process, and whenever the defendant obtains that for which process is designed, namely, notice of the pendency of the action, and, being so notified, appears in any manner which lawfully discloses to the court that he has the notice, the process is functus officio, its regularity and efficiency are no longer in ques-. "tion, and the court, having the person of the defendant before it, proceeds to trial and to judgment as in actions begun in- the ordinary form. The dismissal of the attachment does not operate to •dismiss the suit, but the plaintiff may proceed upon his declaration for a common-law judgment. Civil Code, §4557; King v. Randall, supra. The giving of a replevy bond is a judicial admission -of notice, equivalent in effect to acknowledgment or waiver of personal service. Camp v. Cahn, 53 Ga. 558; DeLeon v. Heller, 77 Ga. 742. If the attachment is for any reason subject to dismissal, the lien acquired by the levy falls and the surety on the replevy bond is discharged; but “the attachment, whether good or bad, brings the defendant into court, if he is served with notice, or if he appears and defends, or if he replevies the property, and he remains in court, though the attachment he dismissed.” Bruce v. Conyers, 54 Ga. 678, 680. Even after judgment the surety on the bond may complain that the attachment is void; but not the main defendant. See Planters Bank v. Berry, 91 Ga. 266. The defendant in attachment has the right to appear and defend whether he enters special bail or not. “Nor does it make any difference that the defendants are citizens of another State. The right of a citizen of another State to appear and answer in our courts of justice can not be questioned. Whether he will do so- or not is for his determination. In some cases he loses nothing' if he does not, for the 'judgment would not conclude him; in attachment, however, he must appear and defend at his peril.” Reid v. Moore, 12 Ga. 370. If he does not replevy, and makes only a special- appearance to question the power of the court to issue the attachment, as was done in the case of Associated Press v. United Press, 104 Ga. 51, the court is not, when the special appearance is-sustained, authorized to proceed further; for the process has proved ineffectual to bring the defendant into court. Bell v. New Orleans & Northeastern R. Co., 2 Ga. App. 812 (5), (58 S. E. 103), and cit. But the filing of a general demurrer or an answer not under-protestation, and without expressly reserving the special appearance,, waives the special appearance. Lyons v. Planters’ Bank, 86 Ga. 485; Savannah Ry. Co. v. Atkinson, 94 Ga. 780; Pacific Selling Co. v. Albright-Prior Co., 3 Ga. App. 138 (59 S. E. 468). The defendant having, by filing a replevy bond, a demurrer, and an answer, submitted itself personally to the jurisdiction of the court, with, the right to make only such defenses as it could have made if it, had been personally served with process, and the surety on the replevy bond making no complaint against the judgment, it becomes immaterial whether the levy of the attachment was regular or not, or whether the property seized was subject to levy; and these questions are therefore not for decision. King v. Randall, 95 Ga. 449. The defendant had the right to replevy irrespeetiveof whether the property was subject or not subject to the levy.. Swift v. Tatner, 89 Ga. 660, 673.

2. While the defendant in attachment, by reason of the facts mentioned above, is precluded from saying that the court did not .■acquire jurisdiction of it so far as the question of the sufficiency of the attachment and levy as a means of bringing it into court is concerned, it still had the right to urge every defense it might have urged if it had been brought into court by service of ordinary process; and therefore might plead that the court was without .jurisdiction, because of the character of the suit or because it was brought in the wrong venue. Thompson v. Wright, 22 Ga. 607 (2). The trite old saying “catching before hanging” is sound in theory and in practice, but it is without applicability when there is a voluntary surrender into the hands of the court; the question ■of catching is over, but the prisoner may still question the authority ■of him who proposes to do the hanging. The question of jurisdiction and suability as applied to non-resident corporations is not ,so much one of citizenship as of finding. Reeves v. Southern Ry. Co., 121 Ga. 561 (49 S. E. 674, 70 L. R. A. 513); Bell v. New Orleans & Northeastern R. Co., supra. We now say again what we said by way of obiter in the case of Pacific Selling Co. v. Albright-Prior Co., 3 Ga. App. 138 (59 S. E. 468), that foreign corporations though they do not transact business in this State, are subject to suit by attachment; and Civil Code, §4527, which apparently restricts that remedy to foreign corporations which do trans-net business in this State, is cumulative and declaratory only, and was enacted to counteract the impression, which otherwise might prevail, that because such corporations, by transacting business in the State, became subject to suit in personam, they would not be subject to attachment. The point made by demurrer and plea, that the court was without jurisdiction, because the contract was made and the cause of action accrued beyond the limits of the .State and not in the county of Crisp, while properly before' us’ for decision, is not well founded. The same point was before us in Lytle v. Southern Ry. Co., 3 Ga. App. 219 (59 S. E. 595), and was decided adversely to the contention of the plaintiff in error.

3. As to the case on its merits, the plaintiffs proved that they •delivered the stock to the defendant in good order, and that it was delivered at destination by the connecting carrier in bad order. They further proved that the defendant did not deliver to the next -connecting carrier in good order, though they were not able to prove directly that all the damage occurred while the shipment was-' in the possession of the defendant. The defendant’s only reply was to show the contract of shipment. Under the law of Kentucky, where the contract was made, it was void so far as it attempted to vary the carrier’s common-law liability, but it was-valid so far as it specified that it undertook to carry the shipment-only to the terminus of its own line and there deliver it to the-connecting carrier. Ireland v. M. & O. R. Co., 105 Ky. 400; Pittsburg Ry. Co. v. Viers, 113 Ky. 526. In case of an entire loss of the goods, prima facie a presumption would arise that the-initial carrier lost them. So. Ry. Co. v. Montag, 1 Ga. App. 649. In addition to the authorities cited in support of this proposition in the Montag case, see L. & N. R. Co. v. Jones, 100 Ala. 263, and Brintnall v. Ry. Co., 32 Vt. 665. The North Carolina Supreme-Court, in the case of Meredith v. Ry. Co., 137 N. C. 478, decides-that the reason and the rule both hold good when applied to a case where the shipment is not entirely lost but is damaged in transit, and places upon the initial carrier the burden of showing that the injury did not occur while in its possession. The Massachusetts court (Farmington Co. v. Railway Co., 166 Mass. 154). and the Alabama court (L. & N. R. Co. v. Jones, 100 Ala. 263) -hold that as to merely damaged shipments the presumption does not arise against the initial carrier. The Alabama court places, its decision upon the ground that the presumption in such cases is against the last carrier. The Supreme Court of Arkansas,, while recognizing the general rule as announced by the Massachusetts and the Alabama courts in the cases just mentioned, held, in the case of St. Louis Ry. Co. v. Coolidge, 67 L. R. A. 555, that whenever it is shown that the goods were partly damaged in the possession of the first carrier, it will be held liable for the whole damage, unless it can by proof shift all or a part of the liability to another. When goods are delivered to a bailee in good condition, the burden, for obvious reasons, is, and should be, on thebailee, to show that he redelivered them to the bailor or to the person or other bailee who is to receive them for the bailor under the contract. Now it may be logically consistent to hold, as did the Alabama court in the Jones case supra, that when it is shown that the goods were delivered by the original bailee, the initial carrier, to the next carrier, and there is no proof as to the condition of the shipment at that time, the law will presume that the goods were in good order, and that therefore the presumption against the first carrier is relieved; this on the theory that since a carrier is not bound to receive goods in bad order, it will be supposed that the second carrier would not have received them in a bad condition. See Ohlen v. A. & W. P. R. Co., 2 Ga. App. 323 (58 S. E. 511). Blit when there is proof that the shipment was already somewhat damaged before it left the custody of the first carrier, there can be no presumption that the second carrier received it in good order, and, as held by the Arkansas court in the Coolidge case, the burden remains upon the initial carrier of showing itself free from liability for each and every portion of the damage. The initial carrier in the case at bar offered no proof, and, the amount • of damage being uncontested, the court did not err in directing a verdict for the plaintiff. We may add that where a through contract of shipment is made, the burden is always on the initial carrier to show its freedom from fault, even though there be a valid contract that each carrier shall be responsible only for damage occurring on its own line; this for the reason stated in the Montag case, supra. Judgment affirmed.