Selma, Rome & Dalton Railroad v. Gammage

Jackson, Justice.

1. The charter granted by Alabama to this company, it is agreed, was adopted and ratified by Georgia ; and therefore appeals from a verdict of a jury on a writ called therein s< ad quod damnum1’ will be regulated by the rules prescribed in the charter. The bond first given by the appellant did not correspond in condition and penalty with that required by the charter, but the court, in accordance with the provisions of our Code in regard, to amendment of appeal bonds generally and the long established practice in •our courts, approved repeatedly by this court, allowed the bond to be amended, and it was amended when first objected to in 1874. Code, §§3505, 3506 ; 1 Kelly, 176 ; 18 Ga., 372, 472, 607; 30 Ga., 329 ; charter Selma, Rome & Dalton Railroad Company, 348-49-51 ; acts of Alabama, 1851.

This general law in regard to amendments pervades our •entire system of jurisprudence, and will be applied to all appeal papers where the party in good faith enters an appeal though irregularly, and no .harm has resulted to the -other party. 1 Kelly, 275 ; 9 Ga., 405, 205; 11 Ga., 39 ; 18 Ga., 607; 30 Ga., 43; 31 Ga., 357; 38 Ga., 322.

2. The charter prescribes that twenty days notice shall be given to the other side by the appellant, and it is ^objected that this has not been done. The objection .probably is vital and would be fatal perhaps had it been made on the first opportunity the defendant had to make it; but the-record shows that it was made on the trial in 1879 and not before, not even on the trial in 1874. Objection was then made in respect to the appeal bond, but not on the ground of want of notice so far as this record shows; and the plaintiff in error must bring a record here which shows-error. With or without notice the respondent appears to have litigated the case -for ten years, and it is too late in the tenth year of the litigation to say that it had no notice. The object of the notice is to bring the respondent in and give him a hearing. This has been accomplished. True, it might have stood on the terms of its charter, had it moved in time, but it failed to do so and has lost its opportunity by laches.

3. When the papers got into the clerk’s office on the 4tjx of September, 1869, which is the date of the bond, it was-his duty to file them, as well as the finding of the uad quod damnum'1 jury as the appeal, and the failure of the clerk to file them ought not to work prejudice to the appellant any more than his failure to file or record the original finding should prejudice the respondant. But this objection, like that in respect to the notice, comes too late after the first trial, and the record does not show that it was made then. Of course either might have been renewed, but originally they should have been made at the earliest practicable stage of the litigation. 1 Kelly, 275; 38 Ga., 222.

4. The Code allows interest to be added to the ascertained value of property taken or destroyed, and the court and jury were right to allow it here, if the appeal was justifiable. The appeal was justifiable if the verdict of the' jury of the vicinage on the writ of ad quod damnum was ascertained to be too small. The appeal jury found that it was too small, and had the right therefore to add the interest and increase the damages found to that extent. Code, §2945 ; 17 Ga., 39.

Indeed, this case illustrates the propriety of the law on. this subject. The appellant was entitled to the payment for his land and the damage in 1869, and has been out of land and money both ever since. To whatever, therefore, was the true amount he had been injured, interest ought to be added unless his appeal was unfounded, and unless $380.00 found by the first jury was just remuneration. If so he ought to have taken that sum, and ought not to have appealed. But this jury have found that he ought not to have taken that sum — that it was not just remuneration— and that therefore he ought to have appealed. Hence interest ought to be allowed.

The truth is, that the right of one whose land has been seized by the public, or by another for quasi public use, to just compensation, is a constitutional right laid down in our fundamental law, and is built upon one of the three inherent, absolute- rights of all men in civilized society — the rights of personal liberty, personal security, private property —courts should therefore protect and guard such rights against infraction by affording full compensation. Cons. U. S.; Code, §5224; Cons. Ga., Sup. to Code, §§473, 474, 503 ; 1 Blackstone’s Com., 129.

5. The evidence as to the proper amount of damage— the value of the land vested in fee simple in the company and the damage to the farm — is conflicting; the presiding judge who granted a new trial once because the verdict then was (oo large, approves the less amount found now; his presentation of the law of the case to the jury was clear, full and liberal toward the plaintiff in error; there is evidence enough to sustain the verdict; and in such a case where the presiding judge approves what is found, this court does not interfere, especially will it be loth to do so where the complaints rest on immaterial technicalities. 15 Ga., 111; 22 Ib., 21; 28 Ga., 73.

Judgment affirmed.