McKenzie v. Loew Manufacturing Co. , 21 Ga. App. 33 ( 1917 )

Bloodworth, J.

McKenzie brought a bail-trover action against Louisville & Nashville Railroad Company and its agent in Atlanta, G. I. Walker, alleging that defendants were in possession of one Loew Victor marine gas-engine, the property of petitioner, worth $850, of the rental value of $20 per month, and that petitioner had made demand upon said defendants for said property and they had “refused to deliver the same to him or to pay him the profits thereof.” The prayer of the petition was for “judgment against the said defendants, and each of them, for said personal property, or in lieu thereof, for the value of the same with the rentals.” "Defendant Walker died, and by order his name was stricken from the case. "Upon failure of the. defendant to do so, the plaintiff gave bond and took possession of the property in controversy. The plaintiff then offered to amend his petition by alleging in part: “2. That said property had been delivered to the Louisville & Nashville Railroad Company by the Loew Manufacturing Company, a corporation of Cleveland, Ohio, at Cleveland, Ohio, to be transported by the Louisville & Nashville Railroad Company to Atlanta, Georgia, and, at the instance and request of the said Loew Manufacturing Company, the defen dánt company had issued its bill of lading therefor, consigning said property to the Loew Manufacturing Company, Atlanta, Georgia, order notify the plaintiff in this case, to wit: M. C. McKenzie; and at the date of filing this suit said property had been transported by said Louisville & Nashville Railroad Company to Atlanta, Georgia, and was held by it ready for delivery, and the plaintiff had paid said railroad company all of its charges held by said carrier against said property for its transportation, and otherwise. 3. Plaintiff was unable to deliver to’ said carrier the bill of lading by which and under which said property had been transported, because the same was held by the Loew Manufacturing Company under a pretended lien or claim of said Loew Manufacturing Company; but Said property was the property of this plaintiff, and the said Loew Manufacturing Company had no lien and no charges thereon, and no right to the possession thereof, and had wrongfully and without any authority of law or right whatever caused said property to be shipped to themselves as consignees, retaining the bill of lading in their name, and thus making it appear that they were either the owners of the property or had some equity or interest therein or lien thereon — none of which they had.” To this amendment Loew Manufacturing Company filed a demurrer, and the court sustained the following grounds thereof: "1. Said proceeding is a statutory proceeding, to wit, an action by trover, and same can not be changed into an equitable proceeding. 2. A trover suit is an action in tort, and same can not be amended and converted into an equitable proceeding either in part or in whole, nor can an equitable cause of action be joined with a trover suit. . . 8. This question was not involved in an equitable proceeding, and hence the amendment herein set up should not have been allowed. 9. The particular amendment was not germane to the original cause of action. The original cause of action proceeded solely upon the ground that the defendant had converted property. The amendment undertook to charge that the shipper was improperly claiming title, and hence the shipper should be made a party. This was a different and a new cause of action and the court should not have allowed same.” The result of this ruling was the striking of the amendment.

It will be noted that the original suit was a bail-trover action, an action ex delicto, by M. C. McKenzie against the Louisville & Nashville Eailroad Company and G-. I. Walker. “The gist of the action of trover is a conversion of the plaintiff’s property by the defendant; that is to say, that the defendant wrongfully deprived the plaintiff of possession.” Bell v. Ober, 111 Ga. 672 (36 S. E. 905); Kaufman v. Seaboard Air-Line Ry., 10 Ga. App. 248 (73 S. E. 592). The amendment sought to change the suit by adding a new defendant, the Loew Manufacturing Company, and introducing a new cause of action as hereinafter set out. The prayer of the amendment was: “Wherefore petitioner prays that the Loew Manufacturing Company be made party' defendant, and that this' court do find and adjudge and decree that the said3 Loew Manufacturing Company has no right, title, interest,- or lien in and to the property in dispute, that the plaintiff is the true owner thereof, and that he holds it free from any claim or pretended claims of said Loew Manufacturing Company and is entitled to the possession thereof, and that the plaintiff do have judgment accordingly for said property.”

From the above it appears that the wrong complained of in the original petition was the conversion of the gas-engine by the Louisville & Nashville Railroad Company, while the wrong complained of in the amendment was that the Loew Manufacturing Company "wrongfully and without any authority of law or right whatever caused said property to be shipped to themselves as consignees, retaining the bill of lading in their name, and thus making it appear that they were either the owners of the property or had some equity or interest therein or lien thereon — none of which they had.”

Not only is a new party and a-new cause of action embraced-in the amendment, but the plaintiff therein prays for a different and distinct judgment to that asked for in the original petition. It seems to us that the issues in this case are settled by § 5683 of the Civil Code (1910), which is as follows: “No amendment adding a new and distinct cause of action, or new and distinct parties, shall be allowed unless expressly provided by law.”. In the case of Long v. Bullard, 59 Ga. 355, 357, Chief Justice Warner says: “Neither a declaration for a legal cause of action, nor a declaration for an equitable cause of action, can be amended by adding a new and distinct cause of action, or new and distinct parties. Equity is ancillary, not antagonistic, to the law; hence equity follows the law where the rule of law is applicable, and the analogy of the law where no rule is directly applicable. Code, § 3083. A plaintiff can no more amend his declaration for a legal cause of action by adding a new and distinct cause of action thereto, or new and distinct parties, under the pretext of an equitable proceeding, than he could amend his declaration for an equitable cause of action by adding a new and distinct cause of action, or new and distinct parties thereto, inasmuch as the law prohibits it in both cases.” On adding new parties, see Delaney v. Sheehan, 138 Ga. 510, 513, 514 (75 S. E. 633); Glaze v. Bogle, 105 Ga. 398 (3) (31 S. E. 169); Neal v. Robertson, 18 Ga. 399; Bass v. Bearden, 6 Ga. App. 696 (65 S. E. 693). As to new causes of action see Barrett v. Mason, 143 Ga. 464 (85 S. E. 340); Cox v. Georgia R. &c. Co., 139 Ga. 533 (77 S. E. 574); Sharpe v. Columbus Iron Works Co., 136 Ga. 483 (71 S. E. 787); City of Columbus v. Anglin, 120 Ga. 785 (5), 789, 792 (48 S. E. 318); Roberts v. Atlanta Real Estate Co., 118 Ga. 502 (45 S. E. 308); Horton v. Smith, 115 Ga. 68 (41 S. E. 253); Charleston & W. C. Ry. Co. v. Miller, 113 Ga. 15 (38 S. E. 338); Baldwin v. Western Union Tel. Co., 93 Ga. 695 (2) (21 S. E. 212, 44 Am. St. R. 194).

Judgment affirmed on main bill of exceptions; cross-bill of exceptions dismissed.

Broyles, P. J., and Jenkins, J., concur.