138 Ga. 96 | Ga. | 1912
The only question presented for adjudication in this case is whether the trial judge properly sustained the demurrer to the petition upon the ground that it appeared therefrom that the action was barred when the petition was filed. The petition showed the following facts: The defendant company, the Seaboard Air-Line Railway, was a foreign corporation chartered under the laws of the State of Virginia. Defendant transacted business and had an office and agent in the county in this State, wherein the action was brought, on and from March 25, 1907, to January 2, 1908. On March 25, 1907, the plaintiff, while a passenger on defendant’s line of road, received serious bodily injuries at a designated place in the State of Florida, as set forth, by the alleged negligence of the defendant in the operation of its train upon which the plaintiff was a passenger. On January 2, 1908, “in a suit wherein the said defendant brought its complaint against the Continental Trust Company, as trustees under the first mortgage made by the Seaboard Air-Line Railway,’* in the “United States court for the eastern district of Virginia,” the defendant corporation was placed in the hands of two receivers, one resident in Baltimore, Maryland, the other in Richmond, Virginia. The petition alleged: •“That as a result of said complaint brought by the said defendant .against the said Continental Trust Company, trustees as aforesaid, the aforesaid receivers were appointed to take charge of all the property and business of the Seaboard Air-Line Railway, including all the property and business of'defendant in both the States of Georgia and Florida, and as a result of the order of the United States court for the eastern district of Virginia, wherein the said receivers were appointed by said court, all the agents of defendant ceased to represent the defendant any longer, and all of the property and business of defendant were placed in charge of said receivers; so that there was no person in the State of Georgia, nor in the State of Florida, upon whom service of this suit could be perfected, and there was no property of defendant against which attachment proceedings could be enforced against defendant either in the State of Georgia or in the State of Florida.” The receivers continued in the possession of all the property belonging to the defendant corporation, and operated its business until on .or about
Under the Civil Code, § 4497, actions for bodily injuries must be brought within two years after the right of action accrues. More than two years had expired from the time the plaintiff was injured by the alleged negligence of the defendant corporation, before he instituted his action. His cause of action was therefore barred, unless the statute of limitations was suspended during the time the assets and business of the corporation were in the hands of the receivers, — that is, from January 2, 1908, to November 15, 1909. In passing upon the question as to whether the statute of limitations was suspended during the receivership, Civil Code, § 2788, is not to be considered; as that section, providing for suits against receivers, is confined to actions for injuries and damages to persons in their employ, and to injuries and damages to personal property occurring during the receivership. Nor did the case fall within the provisions of the act of Congress allowing receivers appointed by Federal courts to be sued, without an order from the court appointing them, for the acts of such receivers during the receivership. The general rule seems to be well settled that the mere appointment of a receiver does not in any way affect the running of the statute of limitations. 25 Cyc. 1282; High on Receivers (4th ed.), § 184; Kerr on Receivers, 160-161; Beach on Receivers, § 234; Harrison v. Dignau, 1 Connor & Lawson, 376; White v. Meadowcraft, 91 Ill. App. 293; Williams v. Taylor, 99 Md. 306 (57 Atl. 641). There are exceptions to this general rule; as, where an equitable suit is filed by one or more creditors and others who may come in, the statute of limitations will not run against any of the creditors who may come in. Sterndale v. Hankinson, 1 Simon’s Rep. 393. So, “Creditors are never barred by lapse of time whilst the law itself hinders them from proceeding.” Hart v. Evans, 80 Ga. 330 (5 S. E. 99). And, “a disability [to sue] 'happening by an invincible
A bodj corporate is not extinguished by a mere appointment of a receiver. Hollifield v. Wrightsville & Tennille R. Co., 99 Ga. 365 (27 S. E. 715). And no reason occurs to us why the plaintiff .in this case could not have brought his action against the railway company in the proper court of its domicile pending the receiver
From what we have said, we have confidently reached the conclusion that the mere appointment of foreign receivers for the railway company for the property of such company, by a foreign court, did not suspend the running of the statute of limitations in favor of the defendant, and that therefore the trial judge properly, dismissed the petition on demurrer.
Judgment affirmed.