Gibson v. Robinson

90 Ga. 756 | Ga. | 1893

Lumpkin, Justice.

1. The plaintiffs in their declaration set forth substantially the contents of the bond sued on, and the facts constituting a breach thereof. Certainly, this is all that could be required of them. The form of pleading set forth in section 3391 of the code, commonly known as one of the “short” forms, is but cumulative in its character ; its use is permissive, not obligatory. It follows, without argument, that there was no merit in the objection urged to the admission of the bond itself in evidence, on the ground that neither the original bond nor a copy thereof being attached to the declaration, “there was no evidence that the bond introduced was the one sought to be enforced.”

2. The principle contained in the second head-note has been so often recognized by this court as to have become settled law in this State. It was announced as far back as the first volume of our reports (Bryant, guardian, v. Owen & Wife, 1 Ga. 355), and as said by Justice Blandeord, in Bennett, ordinary, v. Graham, adm’r, 71 Ga. 213, “ such have been the continuous and uninterrupted rulings of this court.” (See cases cited.) Further than to say we think the principle fully applies to the facts of this case, discussion of the subject would seem unnecessary and unprofitable. It was error to sti’ike the special pleas filed by the surety on the bond, the court holding, in effect, that the judgment rendered against the administrator in favor of the plaintiffs was equally binding upon the surety. The pleas were at least good in substance, and the surety being deprived by such erroneous ruling of so important a branch of his defence, the case must be sent back for a new trial.

After defendant’s special pleas were stricken, certain evidence was sought to be introduced in defence under the plea of the general issue. To the refusal of the court to allow the introduction of such evidence, numerous grounds of exceptions are presented. From such consideration as we have given to the evidence thus set forth, it would appear that no question as to its admissibility could arise if the tender was made under the pleas which were improperly stricken by the court. This being so, under the ruliug herein made, these questions will not likely arise upon the rehearing of the case, and therefore need not be considered further.

8. It is well recognized as a general rule, that where' a judgment is relied on as an estoppel, or as establishing any particular state of facts of which it was the judicial' result, it can be proved only by offering in evidence a complete and duly authenticated copy of the entire proceedings in which the same was rendered. But where' the only direct object to be subserved is to show the existence and contents of such judgment, this rule does not apply, and a certified copy of the judgment entry of a court of record possessing general original jurisdiction is admissible, by itself, to prove rendition and contents. 2 Black. Judg. §604; 1 Greenl. Ev. §511. Such entry will be prima facie evidence of a valid judgment, and on being admitted, all the legal incidents attach which the law annexes to judgments of that class. It will not, however, be conclusive either of jurisdiction of the parties, service, or of any other matter material to the rendition of a valid judgment; and of course, if the party against whom it is offered can derive any benefit from proving the antecedent or subsequent proceedings, or the want of any legal essential, he is still at liberty to introduce the entire record. Thus it will be seen that the exception to the' general rule, while of material advantage and convenience to the one, can result in no hardship upon the other of the parties. The reasons for this exception, as well as those which support the general rule, will appear upon examination of the following cases, which we cite as persuasive authority for the ruling announced in the third head-note: Adams v. Olive, 62 Ala. 418, following previous decision in Locke v. Winston, 10 Ala. 849; Starke v. Gildart, 4 How. 267; Carson v. Huntington, 6 S. & M. 111; Henderson v. Cargill, 31 Miss. 367; McGuire v. Kouns, 7 T. B. Mon. 386; Chinn v. Caldwell, 4 Bibb, 543; Lee’s adm’x v. Lee, 21 Mo. 531; Haynes v. Cowen, 15 Kan. 637; Rathbone v. Rathbone, 10 Pick. 1; Gardere v. Ins. Co., 7 Johns. 514; Jones v. Randall, Cowp. 17; Clark v. Herbert, 15 La. An. 279; Stafford’s Succession, 2 La. An. 886; Price v. Emerson, 14 La. An. 141.

Rightly understood, the case of Mitchell v. Mitchell, 40 Ga. 11, presents no conflict with what we have just ruled. A verdict of a jury is not a-judgment or depree, and even when accompanied by the pleadings, would not be admissible in evidence for most purposes if no judgment or decree appeared. In Dupont v. Mayo, 56 Ga. 304, the judgment or order of the ordinary was sought to be used as adjudicating a discharge of one of the sureties on a prior bond, and as operating incidentally to discharge a surety on the bond in suit. The judgment of discharge, so far from declaring that the guardian was then required, or had been required, to execute a third bond to take the place of the first, indicated on its face that the third was a voluntary bond. It sought to substitute this voluntary bond for the first of the preceding bonds, and declared the discharge ot Smith as the result of this substitution. The guardian had been, previously required to give the second bond as an addition to the first. He had complied with this requisition, and his compliance was expressly announced by an order passed by the ordinary. After this took place, and without any further citation of the guardian or any further requirement made of him, another term of the court arrived, and at that term a voluntary bond previously executed was offered and. accepted, and the discharge of Smith declared. This discharge was consequently based, apparently, on no proper statutory proceeding. The terms of the order indicated some informal proceeding by consent; and this being so, it devolved upon the party seeking to introduce the order to show the essential preliminaries. The reasoning of the opinion may go too far, but limited and explained by the facts of the case, it led to no incorrect result.

A judgment is the conclusion of the law upon matters contained in the record. "Whenever it is sought to establish the conclusion merely and the contents thereof, the judgment is admissible by itself; but when the object is to show any of the premises from which the conclusion was drawn, then the whole record must be produced. The contents of the judgment, the relation of the parties, or other facts expressed therein, are part and parcel of the conclusion. So, likewise, are any legal incidents which the law attaches to these contents.

It only remains to apply the doctrines above announced to the facts of the case now under consideration. In order to show a right of action on the bond, it was incumbent on the plaintiffs to establish a devastavit by the administrator. The judgment entry being prima fade correct, the existence of the judgment as a fact .would be established. One of the questions the judgment must necessarily have adjudicated was, “sufficiency of assets,” as such is the effect the law gives to judgments of that class when shown to exist. Therefore, to prove the devastavit, it was necessary to show simply the existence of such judgment, execution issued thereunder, and proper return of nulla bona. It was only to prove the fact of rendition of the judgment, and the contents thereof, that a certified copy of the judgment entry of Jones superior court was tendered in evidence. The existence and contents of such judgment was the sole subject of inquiry so far as the suit which resulted in it was concerned, and it follows from what has been said that the trial judge properly allowed the judgment proved in the manner objected to.

4. To the introduction in evidence of the execution issued under this judgment, objection was made “on the ground that there was no proper and legal return or entry of nulla bona on said ji. fa.” Upon the ji. fa. are two entries, one made by the sheriff’ of Jones, the other by the sheriff’ of Twiggs county. Save as to the county named, the language employed is the same in one as in the other: “ After search and inquiry, I know of no property of the defendant in the county . . . upon which to levy this fi. fa.” The specific objection raised to the return is, that the levying officer in each instance describing his search to have been for property of the “defendant,” it is impossible to determine “whether said sheriffs meant that they could not find any property of the estate of Lucinda A. Gibson, or whether it was property of O. O. Gibson personally they were unable to find.” The execution directs the money to be made of the “goods and chattels, lands and tenements . . . that were of the estate of Lucinda A. Gibson, and that may •have come into the hands of O. C. Gibson as the administrator of her estate to be administered.” It would therefore seem to us that the most natural, reasonable and sensible construction which could be given to the returns in question would be, that the levying officers conducted their search for property such as is described in the fi. fa., rather 'than for property owned by Mr. Gibson personally ; and that in speaking of him in their returns as “ defendant ” merely, they meant to refer to him in' his representative, not in his individual, capacity. But even if equally susceptible of the construction contended for by counsel, our decision must be the same, for: “ The return of an officer should receive every reasonable intendment and construction, and where it is susceptible of different meanings, that meaning must be adopted which is most conformable to his legal duty. The question must be whether, by a rational construction.of the return, the requisite facts appear. . . . The use of the return is to show the truth of the matter to the court, and the certainty of common-law pleading is not required in it. If there be ambiguity in it, it is the rule that, as the sheriff has acted officially, the construction given should be that most favorable to his having discharged his duty.” Murfree on Sheriffs, §864.

5. It necessarily follows from what has been said in the second division of this opinion, that the trial judge further erred in directing a verdict in favor of the plaintiffs in the court below. Judgment reversed.