Edwards sued tbe Nashville, Chattanooga & St. Louis Railway Company for damages from personal injuries, alleging, among other things, that defendant operated as lessee the Western & Atlantic Railroad, and plaintiff was in its employment at the time in question as engineer on a freight-train. At the close of the evidence for plaintiff, defendant’s counsel moved for a nonsuit upon the ground that plaintiff had sued the wrong cor poration; that the suit should have been brought against the Western & Atlantic Railroad Company, the name which the law of Georgia authorizing the lease provided it should be called by; that the Western & Atlantic Railroad Company is an existing corporation and the .suit should have been brought against it. Plaintiff’s counsel insisted that the nonsuit should not be granted, because defendant had come in and pleaded, and the proof showed that the road was in the coutrol of the Nashville, Chattanooga & St. Louis Railway Company, etc. The court held that there was a defect in the way the suit had been brought, but that the defect was .amendable, and allowed an amendment to be made and overruled the motion. To these rulings the defendant excepted. The court below certifies the following: “The case of Robert E. Edwards against the Nashville, Chattanooga & St. Louis Railway Company was sounded upon the call of the appearance docket at the end of the December term, 1891, being the appearance term of the cause. The case was answered to formally by John T. Glenn, Esq., at the time representing the defendant, and the docket entry of answer was made by the presiding judge. The legal effect of that transaction was, that the defendant served was to be considered thenceforward as having pleaded the plea of the general issue. The point is now made orally for the first time, at the end of the evidence for the plaintiff, the defendant’s counsel having appeared and cross-examined all the witnesses that have been offered up to this time and until the close of the plaintiff’s case. The fact, as I conceive it to be, stands about this way: The State owned some property, to wit a railroad, and she rented it for a term of years under a written lease to the Nashville, Chattanooga & St. Louis Railway Company, being a foreign corporation. That company by virtue of the act became the landlord. Under that act this landlord had a residence as sucb in every county in this State through which the Western and Atlantic Railroad runs. The real landlord has been served in this case. The service is upon the Nashville, Chattanooga & St. Louis Railroad, but the plaintiffs nomenclature is at fault. He has sued and served the right lan dlord, but he has not called him by his right name. The right landlord has come and pleaded. This defect, therefore, in the mere name of the defendant, which appears on the face of the record, is an amendable defect. I therefore direct the plaintiff, for the sake of literal accuracy on the face of our record here, to amend his declaration, following the terms of the statute; or rather, I suggest that if the plaintiff will amend his declaration so as to make it conform to the terms of the statute and assign to the defendant sued the name and style which, as lessee of the Western and Atlantic Railroad, it has by virtue of the christening of a public statute of this State, the amendment will be allowed, to wit: by adding the expression, “ said lessee company known under the name and style of the Western and Atlantic Railroad Company by virtue of a public act of this State.”
Julius L. Brown, for plaintiff in error.
Arnold & Arnold, contra.