Griffin v. Augusta & Knoxville Railroad , 72 Ga. 423 ( 1884 )

Hall, Justice.

1. This case was before the court, February term. 1883i opon, a writ of error sued out because of the refusal of the injunction prayed, and we then affirmed the judgment, holding, in effect, that there was no equity in the bill, and that the complainant had an adequate common law remedy.

2. It seems that, at the return term of the bill, the defendant demurred to it on both these grounds, but neglected to give notice of the filing of the demurrer to the opposite party. For want of such notice, a motion was made, at the trial term, to dismiss the demurrer, which was overruled by the court, and complainant made an amendment to the bill, upon which the defendant renewed its demurrer upon the same grounds, and this time gave the notice required. The complainant insists that this last demurrer went only to the amendment; in this view, however, we do not concur, our opinion that being there was no necessity for this second demurrer, filed after the amendment was made, inasmuch as the failure to give notice of the first did not work its dismissal under section 4200 of the Code. It will be remarked that the form of notice is not prescribed, and the defendant had notice upon the hearing of the application for injunction; that these grounds of objection would be insisted on; besides an amendment which materially changes the case opens the bill, as amended, to demurrer or plea, but an immaterial amendment has no such effect. Code, §4196. The complainant insisted that this amendment did materially change the bill, inasmuch ,as it alleged that defendant had leased its entire road to the Port Royal & Augusta Railroad Company, which is a foreign corporation and is itself insolvent. If this statement were true, then would the amendment give to the bill the equity that without it was wanting. 65 Ga., 614. But is the Port Royal & Augusta Railroad Company a foreign corporation ? The Port Royal Railroad was incorporated ty act of the general assembly of this state, approved December 19, 1859, Pamph. 324, 325, and having been sold under a decree of the circuit court of the United States, it was purchased on the 10th day of July, 1878, by the Union Trust Company, for the bond holders, and these purchasers organized themselves into a new corporation under the act of February 29, 1876, p. 118, and filed their certificate of organization in the office of the secretary of state of Georgia on the 21st day of July, 1878, as the Port Royal & Augusta Railway Company. Under authority contained in the charters of both companies, the Augusta & Knoxville Railroad Company has been leased to the Port Royal and Augusta Railway Company. This domesticates the corporation to which the defendant company has been leased. It is quite true, as argued, that this is not in accordance with the allegations in complainant’s amendment^ but contradicts them. Although the demurrer admits the facts as true, it only admits such as are well pleaded. The court cannot hold facts as true, which are contradicted by legislative acts and records, of which it is bound to take judicial notice.

There are other marked differences between this and the case found in 65 Ga., 614. In that, the damage had been assessed, and judgment rendered therefor by a court of law; there were difficulties in the way of the collection of the judgment, and the aid of the court of equity was invoked to remove them. This court held that, under such circumstances, the bill was not open to demurrer, for want of jurisdiction or power to grant the relief prayed. But we conceive that neither this nor any other court would or could hold, that a court of equity would be authorized to take the initiative in the assessment of damages. To aid the collection of a judgment rendered for damages is quite a different matter from taking cognizance of a suit for the recovery of damages. If the defendant company took possession of and is using the lands of complainant without instituting proceedings to ascertain the compensation to which she is entitled,they are mere trespassers, and are liable to be proceeded against as provided by their charter, or to an action of ejectment, or trespass guara clausum fregit, or trespass on the case for damages, eithei of which is quite as ample a remedy for her grievances as a court of equity can give. It should not be taken for granted that either the defendant, or the company to which it has been leased, would hot satisfy the judgment of the court rendered in either of the -actions here suggested.

Judgment affirmed.