123 Ga. 647 | Ga. | 1905
(After stating the facts.) 1, 2. The proper method by.which to have raised the question made by the motion to dismiss was by plea in abatement, which has not been abolished in this State. But, irrespective of the method, the objection, came too late. The defendant had appeared and filed its defense to the merits, admitting in its answer that it had been served as the •defendant in the case. All the authorities recognize the dilatory nature of the objection upon the ground of misnomer of the defendant, and the necessity of making it as such. 14 Enc. PI. & Pr. 296. The objection must be taken in limine, and the cases hold that where a party, whether a natural person or a corporation, is sued under a wrong name, and appears and pleads by the true name, without raising the' objection of misnomer, the error is waived and the defendant will be concluded. Rhodes v. Louisville, 121 Ga. 553; McCreery v. Everding, 54 Cal. 168; Gilbert v. Nantucket Bank, 5 Mass. 97; City of Kingfisher v. Pratt, 4 Okla. 284; Hammond v. Starr, 79 Cal. 556 (where the defendant was sued as “Ætna Iron Work, a corporation,” when the true name, by which it appeared and pleaded, was “.Ætna Iron Works Company”); Board of Commissioners v. Huffman, 134 Ind. 4 (where the complaint was against “ The County of Huntington,” when it should have been against “ The Board of Commissioners of Huntington County”); Chicago & Alton R. Co. v. Heinrich, 57 Ill. App. 399, affirmed, 157 Ill. 388 (where the defendant, the “Chicago and Alton Railroad Company,” was misnamed in the declaration as the “ Chicago, Alton and St. Louis Railroad Company”). This rule is especially applicable in this State, where all misnomers in civil proceedings, “whether in the Christian names or surnames,” may, on motion, “be amended and corrected instante, without -working unnecessary delay to the party making the
3. In our opinion, the court erred in holding that the answer did not raise any question of fact to be determined by a jury, and in making the mandamus absolute upon the admissions of the defendant in its answer. The section of the Political Code under which the application to the board of commissioners was made by the canning company is as follows: “It shall not be lawful to take or catch any oysters in any of the waters of this State with or by a scoop, rake, drag, or dredge, or by the use of any other instrument than the oyster-tongs heretofore in general use for taking oysters, except within the waters more than one thousand feet distant from the shore-line at ordinary mean low tide. Oysters may be taken by any means or device from any private bed by the owner or lessee thereof, and for the purpose of transplanting to other beds in this State, from territory unleased within said limits of one thousand feet; but, in the last case, only upon the consent and approval of the county commissioners for the county within which said territory may be located, or upon the consent and approval of the ordinary of those counties which may have no board of county commissioners, which consent shall be given in all cases in which application is made for the purpose of transplanting oysters to other beds within the waters of this State, from such beds as are not resorted to by the citizens of this State for the purpose of procuring oysters for consumption or for sale.” Pol. Code, § 1694. The position of the defendant in error is, that as its application was for permission to take oysters, for the purpose of transplanting to other beds within this State, from such public oyster beds as are not resorted to by the citizens of this State for the purpose of procuring oysters for consumption. or for sale, the board of commissioners had no discretion whatever in the matter, but was bound to grant the application, upon its mere presenta
It is true that the section of the code in question declares that whenever the application is made for the purpose specified in the ■statute, and is limited to such unleased oyster beds as are not resorted to by the citizens of this State for the purpose of procuring ■oysters for consumption or sale, it shall be granted; but this does not necessarily mean that the applicant shall be the exclusive judge of the purpose for which the application is made. Suppose that the application is not in fact made for the purpose specified in the statute, but recites on its face that it is, is the board or the ■ordinary compelled to grant it ? Suppose'the real purpose, behind the application, is to take the oysters for the purpose of transplanting them within the waters of another State, or for the use ■of a canning factory owned or operated by the applicant, or for the purpose of selling them in their natural state, and the board of commissioners' or the ordinary know or have good reason to believe this, must the permission be granted upon the mere presentation of the application ? We can not believe that the legislature intended that whenever an application of this character is presented to the ordinary, or board of commissioners, it must be granted, even though it is not made in good faith, but is a mere
Judgment reversed.