Burns v. Horkan , 126 Ga. 161 ( 1906 )

'Cobb, P. J.

1. When the case was called here, defendant in error, Horkan, made a motion to dismiss the writ of error. The grounds of this motion were: There is no sufficient assignment of error as against him. There is1 no separate assignment of error on the order sustaining his ■ demurrer. The plaintiff in one assignment attempts to assign error on two separate and distinct orders ■of the judge below, one being the order sustaining the demurrer of •Taylor and the other the order sustaining the demurrer of Horkan. There has been no final disposition of the ease in the court below,, it being still ¡^ending there against Martindale. Taylor also made a motion to dismiss the writ of error, based upon the same grounds. oThese motions are without merit. Error is assigned in the bill of' exceptions as follows: “After the allowance of the amendment to the petition, the court heard the demurrers and passed an order sustaining the entire demurrer of each of the defendants and dismissing the case; each of which orders and judgment plaintiff excepted to, and now excepts, and assigns the same as error.” The court passed two orders, one sustaining the demurrer of Horkan and the other sustaining the demurrer of Taylor, and, as we have just seen, the assignment of error is, “each of which orders and judgment plaintiff excepted to, and now excepts, and assigns the same as error.” This is equivalent to a separate assignment of error upon, each of these orders, and is a sufficient assignment as to each.

2. The plaintiff sued Horkan, Taylor, and Martindale as joint trespassers; and when the court sustained the demurrers of Horkan and Taylor and dismissed the suit as to them, there was a final disposition of the case as brought by the plaintiff. His joint action against three was transformed into a separate action against one;, and if he submitted to the rulings of the court, the joint action which he brought would be forever at an end, and he could only proceed against the remaining defendant. The judgments sustaining the demurrers and dismissing the case as to two of the defendants, being thus final in their nature, could be brought to the Supreme Court while the case was still pending in the court below against the other defendant. McGaughey v. Latham, 63 Ga. 67; Kollock v. Webb, 113 Ga. 762; Ellis v. Almand, 115 Ga. 333; Johnson v. Porter, Ib. 401; Holland v. Saul, Ib. 511. And failure upon the part of the plaintiff to sue out a direct bill of exceptions, within the time allowed by law for suing out a final bill of exceptions,, would place him in the position of abandoning his joint action and electing to proceed only against the defendant as to whom the case had not been dismissed. Ellis v. Almand; Holland v. Saul, supra.

3. There was a cause of action set forth against Hórkan. The contention of his counsel, that he can not be liable in an action of trespass, unless he “committed the trespass himself or was in possession of the logs or lumber subsequently to the trespass,” is not. sound. According to the allegations of the petition, Horkan combined and confederated with the other two defendants, in furtherance of a scheme previously planned, to take the growing timber belonging to the plaintiff, and, in pursuance of the scheme, executed a paper to the corporation managed and controlled by them, “in which'he pretended to convey to it the sawmill timber on said lot •of land.” Taking these allegations to be true, Iiorkan, although he may not have participated in the physical acts constituting the trespass, either in person or through agents or employees of his, was as much a trespasser as he would have been if he had done so'. “In ■all cases he who maliciously procures an injury to be done to another, whether it be an actionable wrong or a breach of contract, is a joint wrong-doer, and may be sued either alone or jointly with ihe actor.” Civil Code, §3873; Graham v. Dahlonega Gold Mining Co., 71 Ga. 297. One who procures or assists in the commis,sion of a trespass is equally liable with the actual perpetrator for the damages which the owner of the property sustains thereby. As was said by the court in Markham v. Brown, 37 Ga. 277, 281, "This action may be maintained, not only against the party who •did the act, but against all who direct or assist in the commission of it. 2d Leigh’s Nisi Prius, 1443. Thus a party may be sued in trespass in respect of his previous consent, or request, that the trespass may be done, as if A command or request B to beat or impress C, or to take his goods, or to commit a trespass on his land, and B do it, this action lies as well against A as against B. 1st Chitty’s Pleading, 181. 7 Comyn’s Dig. top page 515, letter C.” '“To render one man liable in trespass for the acts of others, it must ¡appear either that they acted in concert, or that the act of the party ¡sought to be charged ordinarily und naturally produced the acts of the others.” Brooks v. Ashburn, 9 Ga. 297. It was held in Kolb v. Bankhead, 18 Tex. 228, that, “Where A, professing to sell timber trees from his own land, points out to the purchaser timber trees upon the land of another, which are cut and-carried off by the purchaser, A is responsible in an action.for damages, in the same manner as if he had himself cut and carried off the timber.” To the same effect is Dreyer v. Ming, 23 Mo. 434, where it was held that where one claims to own land belonging to another and sells the timber thereon to a third person, who cuts and removes the .same, he may be held liable to the owner, as a principal trespasser, -for the timber cut and carried away. In the opinion Scott, J., said: “The defendant, bjr undertaking to dispose of the plaintiff’s property, was the moving cause of the injury sustained by the plaintiff.” He said the case was “similar to that of Wall & Wall v. Osborne, (12 Wend. 39,) where a party sold a mill standing on the lot of his neighbor, and appointed a day for the purchaser to take it away, promising to aid him in its removal, if it was necessary, and the mill was subsequently taken down and removed by the purchaser; and it was held that the vendor was liable to an action of trespass, although there was no proof of his being present or aiding in the removal of the building.”

4. The other grounds of Horkan’s demurrer are equally without merit, and th$y are not urged in the brief of counsel for defendants in error. The question of the statute of limitations seems to have been raised upon the idea that, under the facts alleged, Iiorkan could not be held liable as a trespasser, and that if the plaintiff had any cause of action at all against him, it was barred- in two years. But in the brief of his counsel it is contended that the action is clearly one of trespass, and as such they admit that it was brought within the time prescribed by the statute for the bringing of such an action, which is four years.

5. There is no statute which requires that in an action to recover damages for a trespass upon realty the plaintiff must set forth the title upon which he relies (Gillis v. Hilton & Dodge Lumber Company, 113 Ga. 622); and this was not a requirement of the common law. The gist of the action at common law was the injury to the possession, and it was sufficient if the declaration showed a possessory title; and in order for the plaintiff to recover he had to show that he was in possession at the time of the acts complained of. Our Civil Code (§3877) allows an action of trespass to be brought by the true owner, even though he was not in possession at the time of the alleged trespass, and may never have been in possession, if no one else was in possession under the same title with him. Markham v. Brown, 37 Ga. 277; Yahoola Gold Mining Co. v. Irby, 40 Ga. 479; Atlantic Railroad Co. v. Fuller, 48 Ga. 423. But it has not changed the form of the action in such cases, nor required the plaintiff to set forth the title upon which he relies. If the plaintiff was not in possession, he can not recover without proving that he was the true owner, but he is not obliged to disclose in his petition the evidence upon which he relies to show title. There is no such requirement in an action of trespass quare clausum fregit. Dorcey v. Patterson, 7 Iowa, 420; Ehrmentrout v. McMahon, 78 Wis. 138, 47 N. W. 305. See also, Leihy v. Ashland Lumber Co., 49 Wis. 165, 5 N. W. 305; Van Winkle v. Curtis, 3 N. J. Eq. 422.

6. If the allegations of the petition were true, Taylor and Martindale were liable to the plaintiff as trespassers. They could not shield themselves behind the corporation for which they were acting and of which they were the controlling spirits. They were not sued as stockholders of the corporation, but as individual trespassers. As we have seen, the rule is well settled that all who assist or take part in the commission of a trespass of this character, or who procure it to be done, are liable therefor. The servant is liable as well as the master; the agent as well as the principal, and the officers acting for a private corporation as well as the corporation. It was held in Stafford v. Mercer, 42 Ga. 556, that where a warehouseman had lawfully received cotton in store for another, and his clerk, under his direction, sold it without the consent or authority of the owner, an action of trespass vi et armis- would not lie in behalf of the owner against the clerk. But this was held because the cotton “came legally and properly into the possession of the warehouseman,” and in selling it, under the direction of the warehouseman, the clerk was “but the servant of his principal.” In the opinion McCay, J., said: “If the taking was a trespass, all concerned are liable, but if it [the cotton] was legitimately there, and was sold without authority by the warehouseman, or by his direction, he and not the clerk is responsible.”

Judgment reversed.

All the Justices concur, except Fish, G. J., absent.