Pennington & Evans v. Douglas, Augusta & Gulf Railway Co. , 6 Ga. App. 854 ( 1909 )

Powell, J.

(After stating the foregoing facts.) We are of the opinion that service upon Gibson was not good as service upon the defendant. It was held in Cherry v. North & South R. Co., 59 Ga. 447, that “for service upon a railroad corporation to be effective by reason of .service upon an agent, the agent must at the time of the service be its agent.” This ruling was cited approvingly by the Supreme Court in Ocean Steamship Co. v. Wilder, 107 Ga. 226 (33 S. E. 179). It is unequivocally shown by the testimony that at the time of the service in this case, the alleged agent was not in fact an agent of the defendant company, but was employed by another corporation. It is true that he was agent for a corporation which was controlling property and operating franchises formerly controlled and operated by the defendant, but this fact is immaterial. The case of Perry v. Brunswick & W. Ry. Co., 119 Ga. 819 (47 S. E. 172), is directly in point and controls as to this proposition. Even should we concede that the sale from the Douglas, Augusta & Gulf Railway ■ Company to the Georgia & Florida Railway was invalid for any of the reasons presented in the able argument of counsel of plaintiff, the proposition announced above would not be affected in any wise. The physical fact remains that the contract agency between Gibson and the defendant had been terminated before the service of the process; and that is the controlling fact. No matter what the defendant’s excuse for severing that relation was, the relation had been severed; and the question as to the legality of the sale which defendant made to the Georgia & Florida Railway, and which probably prompted defendant to sever the relation and prompted the other Company to employ Mr. Gibson, is wholly collateral and immaterial.

Counsel for the plaintiff say that the court was authorized to disregard this plea in abatement and traverse, on the ground that it showed that the defendant’s existence as a corporation had ended, and that John Skelton Williams, who swore to the answer, was not the president of the defendant company, but merely its former president, and therefore not authorized to verify it. We think that wherever there is an effort to sue a defunct corporation, the pleadings necessary to bring to the attention of the court the fact that the defendant is not subject to suit and is not subject to the jurisdiction of the court may be presented and verified by those who were last in charge of the defunct company’s affairs. It is plain that there should be some way of bringing these facts to the attention of the court; for, otherwise, the court would be allowed to proceed with a case as to which it had no jurisdiction, and which could have only a fruitless termination. A dead man can not suggest his own death to the court, but the court will always abate the proceedings when the death of the defendant is suggested and properly shown and no new party is made. In those States in which the common-law precedents are followed such matters may be brought to the attention of the court even by amicus curiae. Haley v. Eureka Bank, 21 Nev. 127 (26 Pac. 64, 12 L. R. A. 815, and cit.); 19 Enc. Pl. and Pr. 671. The trial judge having erred as to the controlling'question involved in the cross-bill, the judgment on the cross-bill will be reversed, and the main bill will be dismissed without prejudice to the parties, as to questions of law involved.

Judgment on the cross-hill reversed; the mam hill is dismissed without prejudice.