Cunningham v. Elliott

92 Ga. 159 | Ga. | 1893

Bleckley, Chief Justice.

1. Under §4052 of the code, either party may have a writ of certiorari. One may complain that he got too little; the other, that the prevailing party was entitled to nothing or to less than he did get. There seems to be no reason why complaint by the one should prevent the other from complaining also, or why, if both apply in time, the slower one should fail because the faster had been more expeditious than himself. In this case the pendency of the first writ sued out was no ground for dismissing the-second. In Shope v. Fite, 91 Ga. 174, 16 S. E. Rep. 990, the prevailing party got all he claimed, and nevertheless sought to review by certiorari an error which worked no injury to him on the trial, and which remained open to correction upon the appeal taken by the opposite party. In that case there was no necessity for a certiorari, and therefore it could not be brought.

2. The right to a private way was founded, in this proceeding, upon an uninterrupted use of the way for more than seven years by the owners of the plantation, known as Prairie plantation, their agents, servants and tenants. The claim is evidently of a right of way appendant to the plantation and not one in gross as to all, any or each of the persons referred to, as persons or individuals. A right of way appendant to certain premises is in the owners of the premises. They are the persons injured by an unlawful obstruction of the way, as against their agents and servants, in violation of the light. Their agent, by virtue of §2207 of the code, may commence and carry on a proceeding in their names to remove such obstruction under §738 of the code, but he cannot institute and carry on a proceeding for that purpose in his own name, either individually or as agent; not individually because he has no right, and not as agent because as a general rule, and this case is not within any exception, the rights of principals must be enforced in their own names, as well where an agent conducts a proceeding in their behalf as where they conduct it in person.

3. The petition in this ease is properly construed as being brought by Mr. Elliott the petitioner, not in his individual right, for he sets out none, but as agent for the owners of the plantation and in their behalf. He had no right to maintain the proceeding as it was brought, and the ordinary erred in not dismissing the' petition on demurrer.

4. For the error indicated, the superior court ought to have sustained the certiorari brought by the Cunninghams, the defendants in the proceeding before the ordinary. That proceeding was fatally defective ab initio, and as it was the basis of the whole litigation, this reversal here operates to reverse the judgment of the superior court in so far as it sustained the certiorari brought by Elliott, agent, the plaintiff in the proceeding before the ordinary. Judgment reversed.