Commissioners v. Aiken Canning Co. , 123 Ga. 647 ( 1905 )

Fish, P. J.

(After stating the facts.) 1, 2. The proper method by.which to have raised the question made by the motion to dismiss was by plea in abatement, which has not been abolished in this State. But, irrespective of the method, the objection, came too late. The defendant had appeared and filed its defense to the merits, admitting in its answer that it had been served as the •defendant in the case. All the authorities recognize the dilatory nature of the objection upon the ground of misnomer of the defendant, and the necessity of making it as such. 14 Enc. PI. & Pr. 296. The objection must be taken in limine, and the cases hold that where a party, whether a natural person or a corporation, is sued under a wrong name, and appears and pleads by the true name, without raising the' objection of misnomer, the error is waived and the defendant will be concluded. Rhodes v. Louisville, 121 Ga. 553; McCreery v. Everding, 54 Cal. 168; Gilbert v. Nantucket Bank, 5 Mass. 97; City of Kingfisher v. Pratt, 4 Okla. 284; Hammond v. Starr, 79 Cal. 556 (where the defendant was sued as “Ætna Iron Work, a corporation,” when the true name, by which it appeared and pleaded, was “.Ætna Iron Works Company”); Board of Commissioners v. Huffman, 134 Ind. 4 (where the complaint was against “ The County of Huntington,” when it should have been against “ The Board of Commissioners of Huntington County”); Chicago & Alton R. Co. v. Heinrich, 57 Ill. App. 399, affirmed, 157 Ill. 388 (where the defendant, the “Chicago and Alton Railroad Company,” was misnamed in the declaration as the “ Chicago, Alton and St. Louis Railroad Company”). This rule is especially applicable in this State, where all misnomers in civil proceedings, “whether in the Christian names or surnames,” may, on motion, “be amended and corrected instante, without -working unnecessary delay to the party making the same.” Civil Code, § 5102. This section applies to corporations as well as to natural persons. Central Railroad v. Rogers, 66 Ga. 252; Johnson v. Central Railroad, 74 Ga. 397; Chattanooga R. Co. v. Jackson, 86 Ga. 676. It follows that the court did not err in allowing the amendment which corrected the misnomer as.to the defendant. As the plaintiff had the right to make this amendment at any stage of the cause, it also follows that even if the court had erred in overruling the defendant’s motion to dismiss, such error would have been cured by this amendment.

3. In our opinion, the court erred in holding that the answer did not raise any question of fact to be determined by a jury, and in making the mandamus absolute upon the admissions of the defendant in its answer. The section of the Political Code under which the application to the board of commissioners was made by the canning company is as follows: “It shall not be lawful to take or catch any oysters in any of the waters of this State with or by a scoop, rake, drag, or dredge, or by the use of any other instrument than the oyster-tongs heretofore in general use for taking oysters, except within the waters more than one thousand feet distant from the shore-line at ordinary mean low tide. Oysters may be taken by any means or device from any private bed by the owner or lessee thereof, and for the purpose of transplanting to other beds in this State, from territory unleased within said limits of one thousand feet; but, in the last case, only upon the consent and approval of the county commissioners for the county within which said territory may be located, or upon the consent and approval of the ordinary of those counties which may have no board of county commissioners, which consent shall be given in all cases in which application is made for the purpose of transplanting oysters to other beds within the waters of this State, from such beds as are not resorted to by the citizens of this State for the purpose of procuring oysters for consumption or for sale.” Pol. Code, § 1694. The position of the defendant in error is, that as its application was for permission to take oysters, for the purpose of transplanting to other beds within this State, from such public oyster beds as are not resorted to by the citizens of this State for the purpose of procuring oysters for consumption. or for sale, the board of commissioners had no discretion whatever in the matter, but was bound to grant the application, upon its mere presentation, whether there were any such beds within the county of Me-. Intosh or not; ,and the judge below evidently took the same view of the matter. We think this is too literal a construction of the, statute. If the law means this, it is strange that the legislature-should have required that any application should be made to the, board of county commissioners, or ordinary, as the case may be,, for permission to take oysters, within the limits defined, by any means or device, for the purpose of transplanting to other beds, within this State, from- such beds as are not resorted to by the. citizens of this State for the purpose of procuring oysters for consumption or sale. • Why require the application to be made to tha board of commissioners, if under no circumstances the board can refuse to grant it ? It seems to us that the purpose in requiring the application to be made in such a case as this must be to protect the oyster beds of a county from depredation by any- and everybody who might undertake to gather oysters therefrom, by-the use of any sort of means or device that they might see fit to, employ, under the pretense of taking them, for the purpose of-transplanting within the waters of this State, from unleased lands, not resorted to by the citizens of the State for the purpose of procuring oysters for consumption or sale. We are of opinion that,, under this section of the code, the proper county authority has, at, least, the power of passing upon the bona fides of the application,, and of refusing to grant it, if the circumstances are such as to, warrant the conclusion that the application is not in fact made for-the purpose therein expressed, or if there are no oyster beds, within the waters of the county to which the consent asked for could apply. In the application of the canning company to the. board of commissioners it was alleged that the applicant was, “ the owner and lessee of large territory of oyster beds and lands, situate, lying, and being in the waters of McIntosh county.” This, allegation must have been made for the purpose of showing the, good faith of the applicant and indicating in what waters within, this State the oysters were to be transplanted. And we will say-here that we think that in every application of this character the county authority applied to should be informed of the locality where it is proposed to transplant the oysters; otherwise there, might be no way of ascertaining whether the oysters are to be, transplanted to ether beds within the waters of this State or not.. In its answer to the petition for mandamus the board of commissioners emphatically denied the allegation that the canning company is the owner and lessee of large territory of oyster beds and lands in the waters of, McIntosh county, and alleged that from the fact that this “ misstatement ” was made in the application to the board, and from the further fact that there are no oyster beds in McIntosh county to which the consent asked for could apply, it believed that the application was “ but a subterfuge on the part of the plaintiff so as to prey upon the oyster beds of McIntosh county, . . which are not subject to the provisions of code section 1694.” Under these circumstances, taking the allegation that there are no such oyster beds in McIntosh county to be true, we think the board had the power and was justified iu refusing the application. The answer presented two questions of fact, to be determined by a jury, viz.: (1) Whether there were any oyster beds in McIntosh county to which the permission asked for could •apply; and (2) whether the applicant was really the owner or lessee of any oyster beds or lands in that county upon which it proposed to transplant the oysters.

It is true that the section of the code in question declares that whenever the application is made for the purpose specified in the ■statute, and is limited to such unleased oyster beds as are not resorted to by the citizens of this State for the purpose of procuring ■oysters for consumption or sale, it shall be granted; but this does not necessarily mean that the applicant shall be the exclusive judge of the purpose for which the application is made. Suppose that the application is not in fact made for the purpose specified in the statute, but recites on its face that it is, is the board or the ■ordinary compelled to grant it ? Suppose'the real purpose, behind the application, is to take the oysters for the purpose of transplanting them within the waters of another State, or for the use ■of a canning factory owned or operated by the applicant, or for the purpose of selling them in their natural state, and the board of commissioners' or the ordinary know or have good reason to believe this, must the permission be granted upon the mere presentation of the application ? We can not believe that the legislature intended that whenever an application of this character is presented to the ordinary, or board of commissioners, it must be granted, even though it is not made in good faith, but is a mere subterfuge or pretense under which to cover au illegal purpose. For ..these reasons, we think the court should have submitted the two question above indicated to the jury, and should not have granted a mandamus absolute unless both were answered by the jury in the affirmative. If the canning company was not the owner or lessee of any oyster beds .or lands in McIntosh county,, upon which it could transplant the oysters which it wished to take, then its application should not have been granted; for it did not indicate, in the application, a purpose to transplant the oys-ters upon any other oyster lands within this State. If there is no territory within the county of McIntosh to which the application could apply, the refusal to grant it was proper, as granting it, would be a mere perfunctory and senseless act. At any rate, if this he true, the court ought not to grant a mandamus absolute for this extraordinary writ is never issued for the mere purpose, of settling, in favor of the applicant for it, a question in which he. can have no real, substantial interest. “ Mandamus will not be granted when it is manifest that the writ would, for any cause,, be nugatory or fruitless.” Civil Code, § 4870.

Judgment reversed.

All the Justices concur, except Simmons, O. J., absent.