Cardin v. Jones

23 Ga. 175 | Ga. | 1857

By the Court. —

McDonald J.,

delivering the opinion.

The presiding Judge in the Court below, on the coming in of the defendant’s answer, dissolved the injunction. The complainant in the bill below, excepts to the decision.

The defendant had placed a note of $400, given to him by the plaintiff, in the hands of an attorney for collection. To prevent the attorney from suing that note, the plaintiff placed in the hands ofthe same attorney, a note for the same amount on Lemon Dunn; suit was brought against Dunn on this latter note, in the name of the defendant. It was reduced to judgment, and an execution was issued by the Clerk, and levied by the Sheriff, on the property of Dunn, which was advertised for sale. On the day on which the property was advertised for sale, the defendant agreed to a postponement ofthe sale, on receiving, as a loan, from one of the creditors of Lemon Dunn, who desired a postponement of the sale, a loan of one hundred and seventy dollars, for which he was] to have the control of the fi. fa. to that amount. Failing to collect the amount of the debt from Dunn, suit was instituted against the complainant, on the note placed by the defendant in the hands of an attorney.

The plaintiff alleges in his bill, that he had employed the present presiding Judge, then a practicing attorney, to defend this suit, and that at the trial term of the Court, he attended, and on its being announced that no cause in which the presiding Judge had been employed as counsel for either the plaintiff or the defendant, would be tried, he left the Court, and afterwards this cause was tried.

The defendant denies that there was ever a defence entered or plea filed to this case.

[1.] We will first dispose of the equity which the plaintiff claims, on the ground that he was debarred from his defence by the announcement made in the Court below. According to his own showing, he had employed no counsel after the ■election of his original counsel to the bench. It does not ; appear that he applied to the Judge to employ counselor •that he consulted him on the subject, nor that he was prevented by any cause from doing it. He was altogether at fault. He could not lie by, under the circumstances, and rely upon others to protect his rights. If he had had a substantial defence, and was misled by the Court, the case might have been otherwise. It cannot be presumed that the Court, ¿under the announcement stated in the bill, would have postponed a cause, in which he knew there would be no substantial defence, merely because he had been spoken to as counsel before his election. According to the rule by which Courts are governed on motions to dissolve an injunction on -the coming in of the answer, we must look to the answer for -the equity of the cause. Castleberry vs. Scandett, 20 Ga. Rep. 250. If the answer be responsive to the bill, and the equity on which the injunction was granted, is denied, the injunction must be dissolved. All the equity claimed by the plaintiff, except that which we have disposed of, is, that he is entitled to relief on account of the defendant’s postponing .the sale of Dunn’s property for a consideration, and because if it had been sold on the day of the postponement, it would have paid all the debts. All the allegations of the bill in reference to these matters, áre denied by the answer, and this being a motion simply to dissolve the injunction, the denials of the answer must prevail.

[2.] It is insisted that the order passed by the Judge at Chambers is final, inasmuch as it directs $170 to be entered as a credit on the fi. fa.., and that it is void because it is done without the intervention of a jury. It is not a decree, as was the case of Hargraves vs. Lewis, 3 Kelly, 162. If it be an error, it is not one which prejudices the plaintiff. If an error, it is one against the defendant, because he says the §170 was a loan, and neither a payment nor the price of postponing the sale, and the party making the loan controls the fi. fa. against Lemon Dunn for his reimbursement, to the extent of the loan. If that be the case, the plaintiff has the benefit of it, as an absolute payment, while the defendant loses that amount, if it cannot be collected on the execution, for he is bound, if it be a loan, to repay it. The order for dissolving the injunction might have been more properly framed, by directing ihe execution to proceed for the entire amouut, excepting the $170, and allowing that sum to remain until it was determined whether it could be collected on the execution against Lemon Dunn. The plaintiff has a more favorable order, perhaps, than he could have obtained at a hearing of the cause.

[3.] It is a strange proposition, contended for by the plaintiff’s counsel, that a creditor who receives a promissory note from his debtor, as collateral security, and brings suit on it in his own name, converts himself into a surety for the debt- or’s debtor. He is bound to due diligence in the collection ■of the debt, and if anything is lost by the want of it, he is to be the loser.

The bill is not dismissed, and if the plaintiff thinks proper to have a hearing before a jury, he is entitled to it. The dissolution of the injunction does not prevent that. It only turns the execution loose.

■Judgment affirmed,