Ocilla Southern Railroad v. Morton , 17 Ga. App. 703 ( 1916 )

Broyles, J.

1. Under the particular facts of this case, the writ of error can not be dismissed for lack of a sufficient assignment of error. “It is distinctly shown [in the bill of exceptions] that there was no controversy about facts; that only one question of law was submitted to the court; that the court decided it adversely to the contention of the plaintiff in error, and entered a judgment against him; and that the latter excepted and assigned this as error. Good practice required no more.” Patterson v. Beck, 133 Ga. 701 (1), 707 (66 S. E. 911).

2. While all the property of a railroad company is subject to be applied to the payment of its just debts, and may be sold for that purpose under a judgment at law, the judgment and the execution founded thereon must be specially molded in compliance with sections 5928 and 6025 of the Civil Code of 1910; and a sale under an execution not so molded, about to be made by the sheriff, may be arrested by an affidavit of illegality interposed by the corporation through its proper officers. City of Atlanta v. Grant, 57 Ga. 340. There was no such special lien created by the judgment in this case, and therefore, under the foregoing ruling and the decision in Gammage v. Georgia. Southern Railroad Co., 65 Ga. 614, a locomotive and tender of.the raili'oad company, in actual use, could not be legally levied upon in this case (see also 4 Cook on Corporations, § 899) ; and the trial judge, sitting without the intervention of a jury,, erred in holding that such property was subject to the levy, and in dismissing the affidavit of illegality interposed thereto.

Decided March 4, 1916.

Affidavit of illegality; from city court of Nashville — W. G. Harrison, judge jiro hac vice. November 23, 1914.

J. D. Lovett, II. J. Quincey, J. B. Wall, for plaintiff in error. Hendricks, Mills & Hendricks, contra.

Judgment on the main bill of exceptions reversed; on cross-bill affirmed.