63 Ga. 490 | Ga. | 1879
It appears from the record in this case that plaintiff held! two of defendant’s mortgages, one dated August 8th, I860,, for §3,000, and one dated June 12th, 1867, for $1,000, and' at the January term, 1871, of Richmond superior court, petitioned to foreclose the same, and obtained a rule nisi claiming a balance due on the mortgages of $2,045.64, besides interest, which was duly served on defendant.
At June term, 1871, defendant appeared by his counsel and pleaded the general issue, usury, payment, irregularities committed by plaintiff’s board of directors in lending and neglecting to lend money, and in making settlements with members during the war and subsequently, contrary to the constitution and upon terms unfavorable to defendant as a stockholder,! and in permitting some stockholders who had paid their obligations in Confederate money, to borrow again, after the war, on their stock. He also pleaded over-payment? and asked for a judgment against plaintiff for the amount claimed by him.
Both the rule nisi and the verdict and judgment were entered at the proper time upon the minutes of the court, and now appear in the record before this court.
At the same term defendant moved for a new trial upon various grounds, which appear in the record, and on the 29th of February, 1876, the motion was overruled, and the defendant excepted and brought the case, by writ of error, to this court.
At July term, 1876, to-wit: on the 12th of December, 1876, the case was called in the supreme court, and after argument had, the court discovered that the record did not contain the petition and rule nisi, nor the verdict and judgment absolute, and dismissed the case.
At October term, 1816, of Richmond superior court, held by adjournment December 15th, 1876, the remittitur from this court was, by order, entered upon the minutes of Richmond superior court, and plaintiff obtained an execution upon its judgment and caused the same to be levied upon the mortgaged premises.
Afterwards, on the 8th of April, 1S77, defendant filed a bill of review, in Richmond superior court, against the plaintiff, in which he detailed the proceedings had in the case in that court and in the supreme court (claiming that the omission from the record of the petition, rule nisi and rule absolute was wholly without fault or neglect on his part in any way) and prayed for an injunction and new trial, alleging substantially the same matters of fact and law as were set forth in his pleas and motion for new trial.
To this bill the resjrondent (now plaintiff in error) filed a demurrer, also a plea of matters in record in aid of the de
. At October term, 1878, of Richmond superior court, held by adjournment December 20th, 1878, the case made by said bill of review was called, and the following order wa.s entered upon the minutes :
“Op motion, parties consenting, it is ordered that the above cause be determined by the court, without the intervention of a jury, upon the bill, demurrer, plea and answer.”
Subsequently argument was had, and on the 24th of December, 1878, the court rendered the following decision :
“I am unwilling in this case, as judge, to determine more than the question presented by the demurrer. If the facts stated in the bill be true, the complainant is clearly entitled to a rehearing. The demurrer is overruled — cause ordered to be reheard upon the plea and answer of respondent.”
To which decision the plaintiff in error excepted.
It does n-ot appear in the record, but it did before the court below, when the case last mentioned was submitted by brief, that a written statement was furnished to his honor, Judge Gibson, by 'William A. Walton, of counsel for respondent, containing the following facts;
“That a few days after the writ of error in the first case was dismissed by this court, he went into the clerk’s office of Richmond superior court, and while examining for other papers, he found among the clerk’s files the petition, rule nisi, defendant’s pleas, and the verdict and judgment absolute in said first case, and called the attention of the deputy clerk to them, who took them in charge.”
And “that on a subsequent occasion he examined the minutes of said superior court and found the rule nisi, verdict of the jury, and the judgment absolute, entered upon said minutes by the clerk, at the proper dates.”
Messrs. ITook & Webb,' counsel for McAndrew, deposed that said papers were not in their possession when the record was made out, and that they were not aware of the omission to include them until the fact was stated by this court in pronouncing its judgment.
Let the judgment of the court below be reversed with directions.