Western & Atlantic Railroad v. Kirkpatrick

Jackson, Chief Justice.

Suit was instituted by Kirkpatrick against the Western and Atlantic Railroad Company for killing a horse by the running of its train, in the justice court at Cartersville, in Bartow county, and judgment rendered against the company. The case was taken by certiorari to the superior court, was dismissed and the judgment of the justice was affirmed. Thereupon the company excepted.

The ground of exception is that the summons was to the agent, and he and not the company was sued, and that the justice of the peace should have dismissed the suit as to the road, but he allowed the summons amended.

Substantially the summons was against the company and served on the agent, and a declaration was filed on it setting out in full the cause of action against the company — there was no need to amend it. It and the declaration were as follows, and were ample to sustain the suit against the company:

“State of Georgia 1 To any lawful constable of said Bartow County, 822d Dist. G. M. j county to execute and return.

“ To J. C. Wofford, agent at Cartersville, said district, of Western and Atlantic Railroad Company, defendant:

“You are hereby commanded to be and appear at the justice’s court to be held in and for said district at Cartersville, in Bartow county, on the second Tuesday of December, 1878, by ten o’clock, a. m., to answer the demand of plaintiff in damages as set forth belovr (a copy of which is hereunto appended). Witness my official signature, this 12th November, 1878. James M. Smith, J. P.”

Copy of demand sued on-:

“ Georgia — Bartow County.

“ To the justice’s court of the y22d district G. M., said county:

“ The petition of T. S. Kirkpatrick, showeth that the Western and Atlantic Railroad Company, a corporation of said state, and doing business, and having a place of business in said state, county and district, has injured • and damaged your petitioner in the sum of one hundred dollars in this, that on or about January 5th, 1878, said railroad company killed, by the running of a car, or engine, or locomotive, or other machinery on said railroad in said district, one dark brown horse mule, about nine years old, the property of your petitioner, and of the value of one hundred dollars, the value of which property said defendant refuses to pay.

“ Wherefore petitioner prays process as above set forth, may issue requiring said defendant to appear at the time and place above set forth to answer your petitioner’s complaint in damages.

R. P. Trippe,

Plaintiff’s Attorney."

“Served a copy of the within on J. C. Wofford, agent for Western and Atlantic Railroad Company, at Cartersville, Ga., in person, this November 28th, 1878. John W. Hill, L. C.”

Judgment affirmed.