Easley v. Camp

40 Ga. 698 | Ga. | 1870

McCAy, J.

This was a motion to set aside a judgment obtained in Clayton Superior Court, on the ground that it was illegal. It is claimed that the consideration of the debt on which the judgment is founded, was a mule,-sold by the plaintiff’s endorser, to the defendant, Camp, to bo used in the Confederate army, that for this consideration Camp endorsed the note which was then a due note, and that the person to whom the note was thus endorsed, knew the use that was to be made of the mule.

The Constitution of 1868, in ratifying and adopting the judgments of the Courts, from the 19th January, 1861, the date of the Ordinance of Secession, expressly provides that no motion to set aside any such judgments, for “fraud, illegality or error of law,” shall be denied by reason of its not having been moved in time, if the motion is made within twelve months after the adoption of the Constitution. The movant in this case is within the twelve months, and he claims that there is an error in law or illegality in the judgment.

The Court below entertained the motion, an issue was made up, the jury found in favor of the movant, and the Court set aside the judgment.

The plaintiff in error has not seen fit to cause the record of the judgment to be brought before this Court, and we are unable to say that the Court erred. We do not know when the judgment was obtained, nor do we know from the record whether the defendant, in the judgment, set up this defence at the trial or not. We do not even know that the judgment has not been obtained since the ratification of the Constitution. If this judgment was obtained since the ratification of the Constitution, or since the war, after the Courts would have permitted such a plea, and no such plea was made, we do not think the judgment was illegal. If parties have a good legal defence, and fail to make it, and the Court decides rightly on the ease as made, it is not an illegal judgment» no error in law has been committed, and the judgment will stand unless the parties can show some good reason for their neglect to set up their legal defence.

If this judgment and the record connected with it were before us, and it appeared to have been obtained since April, 1868, or even before that time (since the war,) without any ruling of the Court, that the plea now set up was bad, it would not be an illegal judgment, no error of law would have been committed, the fault, if any, would have rested on the party, and the clause in the Constitution of 1868 would not aid him.

But the judgment is not here ; it may have been obtained during the existence of the war, when it was not possible, or permissible to put in such a plea, or it may have been obtained since the war and before April, 1868, under a ruling of the Court against such a plea. In either of these two contingencies the motion was a good one, and Judge Pope’s ruling perfectly correct.

The plaintiff in error has not brought the judgment and the proceedings to this Court with his transcript, and this Court is unable to say there was error in Judge Pope’s ruling. The rule uniformly adopted in this Courtis, that it lies in the plaintiff in error to show by the record that the Court below erred. If there is any part of the record not brought here, which might show the Court below to be right, this Court will presume against the plaintiff in error. Perhaps, if the judgment in this case, and the record and proceedings were before us, (and they wore the very foundation of this motion,) itwould appear that tin's judgment was obtained during the war, or if after the war, on a ruling of the Court against the plea. In either case the present motion would be good.

During the war such a plea could not be pleaded and the defendant in the judgment is not in laohes, and even if the judgment was obtained since the war and before April, 1868, it may have been on a ruling of the Court against the plea.

In favor of the judgment of the Court below we will presume, (it being the plaintiff’s business to bring the record here,) that if here it would show either that the judgment was obtained during the war or on an illegal ruling of the Court before which it was obtained against the plea. And on this ground we affirm the judgment.