Mitchell Automobile Co. v. McDaniel

Hill, J.

1. An acknowledgment of service on a bill of exceptions, without reserving the right to object to the sufficiency of service, is a waiver of the right tó urge a dismissal of the writ of error because it was not served or the acknowledgment of service obtained thereon within the period allowed by statute. Acts 1911, p. 149, sec. 4; Jones v. Patterson, 138 Ga. 862 (76 S. E. 378).

2. This suit was brought against the S. L. Mitchell Automobile Company and Frank Mitchell. The defendant company was not declared to be either a corporation or a partnership. Its name imported a corporation, and having made answer to the petition, in the decision of this case it will be deemed to have been a corporation. The court allowed in evidence certain declarations of a person whom the witness said was pointed out to him as the general manager of the corporation, made pending negotiation for a compromise of a proposed suit for damages and embracing certain admissions as to liability on the part of the corporation. This agent was not shown to have authority to bind the corporation; and it was error to receive such declarations made after the injury. The admission of such evidence against the other defendant (against whom a verdict was also returned) was error, because as to him it was purely hearsay, it not being pretended that the declarant had authority to represent in any way the other defendant. This ruling covers other assignments of error objecting to certain testimony because not shown to have been statements made by one authorized to bind the defendants.

3. The fact that one is authorized to sign a replevy bond for a corporation is not proof that he has authority to represent the corporation in making an admission of liability with respect to a tort alleged to have been committed by it; and the allowance of such bond in evidence for that purpose, over objection, is error.

4. The errors pointed out require the grant of a new trial.

Judgment reversed.

All the Justices concur.