14 Ga. 36 | Ga. | 1853
By tiie Court.
delivering the opinion.
With considerable pains, we think we have succeeded in unravelling the tangled record in this case.
In 1842 nine judgments were obtained by Philip Eitzgerald, against Bennett Youngblood as principal, and Sanford Adams as endorser, in the 549th district of this State; eight of which were for $30 each; and one for $25. Executions were immediately issued, and two of the fi. fas. were satisfied from the sale of a piece of land, which the record states was the property of Adams. It seems, however, that it was the same land for which the notes were given, upon which these suits were brought. In 1847, the balance of the fi. fas. were levied on a tract of land belonging to Adams. He filed an affidavit of illegality upon several grounds: but the only one which it is necessary to notice is this, namely: — that he never was served with process, nor acknowledged service in these cases.
The illegality was returned, as it should have been, to the Court from which the executions issued; and here the litigation
The plaintiff, Fitzgerald, having offered in evidence his fi. fas., and the judgments upon which they were founded, the burden was cast upon the defendant to prove a negative, to-wit: that no summonses were ever issued in these cases; and that he had never been served therewith, acknowledged service, or confessed judgment. And for this purpose he showed that he had searched various places where it was most likely these papers would be found, if in existence; and that there was no trace of them any where.
It was objected that he had not applied to Simmons, who issued the summonses and rendered the judgments; nor to Francis M. Handley, the present Justice of the Peace, who succeeded Simmons. The Court overruled the objection, and suffered secondary evidence to be introduced. Various testimony was submitted to the jury, who found a verdict for the defendant.— A certiorari was sued out; and upon the hearing, Judge Hill not only sustained it on all the grounds set forth in the petition, and ordered a new trial, but ruled in the first place that it was not competent for Adams to go behind the judgment in an illegality : and in the second place, that Adams was estopped from denying the validity of the judgments — having allowed the whole of the fi. fas. to be levied on his property, and two of them satisfied from the sale thereof as early as 1842.
But there is one error in the judgment, in the Justice’s Court; on account of which, we hold Judge Hill was right in ordering a new trial, and that is, the letting in by the Magistrates, of secondary proof as to the want of service, &c., before any inquiry was made of Handley, the present Justice of the Peace of the District, for the original papers. He is the successor, remotely, though not immediately, of Simmons, who issued the' summonses, and rendered the judgments; and we think that all-the sources of information which were accessible to the party,, could not be said properly to have been exhausted, until search was made among the archives and papers of file in Handley’soffice, for the papers. It is made the duty, by law, of each retiring Justice, to turn over to his successor his book of entries,, or a copy thereof, &e.; and it is a fair presumption that all the-papers appertaining to the office will be found in the possession of the last incumbent.
And what is the proof upon which the defendant endeavors to evade the payment of these executions ?
Mr. Simmons swears that after he received the notes for collection, he saw Youngblood, and informed him that he had them, and that he had better see Adams, and he and Adams come and acknowledge service on the summonses, and save cost; which Youngblood promised to do, and appointed a day for that purpose. That at. the time specified, Adams came; but Youngblood did not attend. Witness stated to Adams that he had the notes for collection, and that he had better acknowledge service and save cost; to which Adams replied, “ very well — it will be all right” — or words to that amount. That he issued summonses in said cases, but thinks Adams did not acknowledge service on them.
If he did not, why, I ask, did Mr. Simmons enter up judgment and issue executions against him ? If estoppels by record apply to Judicial officers, it would seem that he could not be allowed to deny his official acts. Mr. Simmons will not swear positively that service was not acknowledged by Mr. Adams : which is the most reliable, his memory about the matter, which he admits to be indistinct, or his public conduct as a sworn Magistrate ? If he rendered judgment against a party that was never served, he was guilty of mal-practice and gross official misconduct. The doubt of the witness, therefore, at this distance of time, more than seven years having intervened, is more than outweighed by the presumption that he did his duty. Besides, where are these original papers ? It is in proof by Mr. Simmons, that he issued them. They furnish the written evidence of service. To rebut this, the strongest testimony should be required. Probability, inference and conjecture, drawn entirely from parol proof, and that of the vaguest character, are
And what is the testimony of Archibald McEarchom, the bailiff of the district at that time ? That to the best of his recollection, he never served either of the defendants with copies of the summonses. He admitted that he may have served the process, but if so, he had forgotten it. He is certain he never did serve the parties in these cases. He further stated that there wore frequently two constables in the district, but that in April, 1842, to the best of his recollection, there was but one.
The act of 1850 (Oobb’s Digest, 529) provides, that in all cases, when the error committed by the Justice’s Court is an error in law, which must finally govern the case, that it shall be the duty of the Judge of the Superior Court to make a final decision on the case, without sending it back for a new trial with instructions.
And concurring, as we do, with our brother Sill, that in a proceeding of illegality, it is not competent for the parties to go behind the execution, and attack the judgment upon which it issued, had he for this reason arrested the ease, instead of remanding it for a re-hearing, we are inclined to think that he Would have been sustained.