12 Ga. App. 108 | Ga. Ct. App. | 1913
Bridges sued the Southern Bell Telephone & Telegraph Company, to recover damages in the sum of $3,000, and his petition makes, in substance, the following case: He is the owner of 30 shares, par value $100 per share, of the capital stock of the Bainbridge Telephone Company, a corporation having its place of business and principal office and agent in Decatur county, Georgia, and having no officers or agents elsewhere. The corporation has a capital stock of $20,000, its property consisting of the regular telephone appliances, with exchanges at Brinson, Climax, and Bainbridge, and being of the value of $36,000. On January 10, 1910, the Southern Bell Telephone & Telegraph Company entered into possession of all the property, real and personal, of the Bainbridge Telephone Company, and since that time has exercised full possession and dominion over said property, to the exclusion of the officers and stockholders of the Bainbridge Telephone .Company, and is now exercising 'possession and control. The Southern Bell Telephone & Telegraph Company has never paid or offered to pay the plaintiff for his interest in the Bainbridge Telephone Company. The possession by the Southern Bell Telephone & Telegraph Company is held under some contract of sale purporting to have been executed by the former president of the Bainbridge Telephone Company. This pretended sale was entered into and effected without any authority of the stockholders of the Bainbridge Telephone Company, and without the knowledge or consent of the petitioner. Since said pretended sale, the officers and directors of the Bainbridge Telephone Company have ceased to exercise the charter rights of the company, and have failed to provide any one to account in their stead for the management of the property of the Bainbridge Telephone Company. The officers of the Bainbridge Telephone Company aré seeking to vacate the charter of the company, and have abandoned all control of its property, and the company has no officer or person to manage the same. It is alleged that the possession of the property by the Southern Bell Telephone & Telegraph Company is unlawful, as against the petitioner, and has rendered valueless his stock in the company, and has damaged him in the sum of $3,000. By an amendment it is alleged that the petitioner has never been paid any sum whatever by the defendant for his stock in the Bainbridge Telephone Company, and that said stock at the time of the alleged attempted sale of the property,
We think the allegations of the petition set up a cause of action, and were good as against a general demurrer. Benton v. McCord, 96 Ga. 393 (23 S. E. 392); Harris v. Grant, 96 Ga. 211 (23 S. E. 390); Tanner v. Lindell Ry., 180 Mo. 1 (79 S. W. 155, 103 Am. St. R. 534). It is not necessary to pass upon the judgment overruling the demurrer to the special plea in bar; for, after the petition had been dismissed, no suit was pending; but as the case is to be tried again, we deem it not improper to state that the plea in bar was hot sufficient to arrest the suit, and that the demurrer thereto should have been sustained, for the reason that the plea, so far as it sets up that the case is one for equity, is not well founded. While the city court has no equitable jurisdiction, it nevertheless can apply an equitable remedy by restoring property, or giving judgment for the value of property, wrongfully taken from a party. So far as this plea relates to the question of res judicata, reference to the two suits will show that they are entirely distinct, with different parties, different relief asked for, etc., although relating to the same subject-matter, to wit, the value of the stock which the plaintiff owned in the Bainbridge Telephone Company at the time of the alleged attempted sale to the defendant corporation.
Judgment reversed.
