Gunn v. Howell, 35 Ala. 144

Gunn v. Howell

35 Ala. 144 | Ala. | 1859

A. J. WALKER, O. J.

The objection to the entire record given in evidence, upon the ground that the certificate was defective, was not well taken. The certificate contains all that was necessary to legally attest both the record of the original suit against Jones and Gunn, and of the proceeding by garnishment against Howell, as the debtor of the defendants in the former suit. .There are, therefore, really two certificates, each attesting a different record, and a common signature and seal applicable alike to both. We know of no reason why such an attestation should be deemed fatally defective. It is clear that there is a certificate attesting each record, and each certificate is alike fortified by the signature and seal. This constitutes a substantial compliance witli the act of congress.

[2.] It may be that the transcript does contain things which do not belong to the record. If it does, it was no ground far a motion to exclude the entire record.

[3.] The objection, that a fraudulent exclusion of an execution, a part of the record, is apparent, is not well taken. There is nothing to indicate an exclusion of any execution or other paper from the record, which was attainable by the clerk. The inference is, in the absence of all evidence to the contrary, that the execution had been lost or destroyed by accident, rather than it was fraudulently suppressed. Omnia, presumuntur rite esse acta.

[4.] The record offered in evidence did not correspond with that described in the 6th plea, as it is explained by the agreement of counsel. But there was a plea of nonassumpsit, or the general issue; and under that, a discharge of the defendant, by a payment of the money due the plaintiff under a valid garnishment, was an available defense. — 1 Chitty on PI. 478 ; Cook v. Field, 3 Ala. 58, The court was, therefore, right in refusing to reject the record entirely, because it did not correspond with the allegations of the 6th plea.

*160[5.] The record of the proceedigs in the original suit of Johnson & Johnson v. Jones & Gunn, was relevant in this ease, and admissible in evidence. It was permissible for the defendant in garnishment to show that there was a valid judgment against his creditor, which he paid under the compulsion of a garnishment, for the existence of such a judgment was a part of the defense; and there was no error in overruling the plaintiff’s objections to the different parts of the record in that case.

[6.] The garnishee could not avail himself of any mere irregularities in the original suit against his creditor. He could not have assailed the judgment collaterally, upon the ground that it was voidable. He, therefore, is not deprived of his protection as a garnishee from a second payment, on account of mere irregularities in the original suit. The judgment in the original suit was not void. The court had jurisdiction of the defendants’ persons. They pleaded and appeared by an attorney. The court properly refused to exclude any part of the record because it was irregular. If the service of notice to revive the suit in the name of the administrators of the deceased plaintiff was not consistent with the Georgia statute, it is a mere irregularity, not affecting the validity of the judgment. So, also, the omission of the record to show that the jury was empaneled and sworn, the service of the scire facias for the revivor of the suit on the defendants’ attorney, and the failure of the record in the garnishment suit to show that the original judgment was for an amount as great as that which was rendered against the garnishee, were, at most, mere irregularities, which do not render the judgments void.

The verdict to'which objection was made was a matter of record. It seems to be a part of the judgment entry, and the predicate of the judgment.

[7.] One objection to the admissibility of the record specifies an extract, from the execution docket, showing the issue and return of an execution. The exemplification does not show that the sheriff’s endorsement upon the execution wras copied from the execution docket. The endorsement of a sheriff upon an execution returned *161by him is a matter of record. — Creagh v. Savage, 14 Ala. 454; Hardy v. Gascoignes & Holly, 6 P. 447; Barron v. Tart, 18 Ala. 668. So much of the evidence covered by the objection as pertained to the sheriff’s return was legal; and the objection, being a general one to evidence a part of which was legal, was properly overruled.

[8.] The two receipts — one by Bristow, the clerk, and the other by one of the plaintiffs in garnishment — were not parts of the record. — Carlisle v. Tuttle, 30 Ala. 627; Martin v. Martin, 22 Ala. 102; Mitchell v. Mitchell, 3 St. & P. 81; White v. Strother, 11 Ala. 723. The copies of them in the transcript were secondary evidence of private writings, and the court erred in overruling the plaintiff’s objection to them. We cannot pronounce these receipts redundant evidence. — Doe v. Reynolds, 27 Ala. 364. They contributed to corroborate the witness Johnson. The credibility of Johnson’s testimony was a question for the jury; and we cannot assert that the jury would have credited the evidence of Johnson in the absence of corroboration. This is not a case of merely redundant, or superfluous testimony, introduced to support a right otherwise established by indisputable proof. — Kyle v. Mays, 22 Ala. 692; Frierson v. Frierson, 21 Ala. 549; Parsons v. Boyd, 20 Ala. 112.

[9.] The extracts “from the bench docket” did not belong to the record, and should have been excluded; but it is probable that the admission of that testimony would not work a reversal, as it seems incapable of affecting the issue in any way. The opinions delivered by the judge in Georgia, likewise, were not matters of record, and were inadmissible.

[10.] When this case was before in this court, (27 Ala. 663,) it was decided, that the record of the proceeding against the garnishee in Georgia was defective, because it did not show the jurisdiction of the court. Since that time, an amendment nunc pro tunc, alike of the original judgmént against the garnishee’s creditor, and of the record of the proceeding against the garnishee, was made. These amendments show that the original judgment was in favor of the representatives of Calloway, there having *162been a revivor of the suit after the death of Calloway; that an execution issued, and was returned “ no property found;” that the affidavit, preliminary to the issue of garnishment, required by the Georgia law, was made; that there was a valid judgment in favor of the plaintiffs in garnishment, against the creditor of the garnishee, and that a regular summons of garnishment was served. These amendments nunc pro tunc supply every fact necessary to uphold the jurisdiction of the court to render the judgment against the granishee, and the ground upon which there was a reversal when the case was before in this court no longer exists, if the court bad authority to make the amendments nunc pro tunc.

There are many arguments adduced to show the want of authority to make those amendments; but none of them are, in our opinion, sound. It is said that the original judgment was in favor of a dead man, was therefore void, and could not be amended. The reply to this argument is, that the original judgment was really in favor of the representatives of the deceased, and was entered up by clerical error in favor of the deceased ; and that the office of the amendment nunc pro tunc was to make the record declare the judgment as it was in fact— to make the record speak the truth, and show that the judgment was valid at the commencement. Our own decisions are conclusive against the objections, that the amendments nunc pro tunc were made without notice. Glass v. Glass, 24 Ala. 468; Allen v. Shotwell, 3 Ala. 281; Brown v. Bartlett, 2 Ala. 29; Fuqua v. Carrol, Minor, 170. The same reason, which dispenses with the necessity of notice, would justify the making an amendment nunc pro tunc after the defendant’s death. This court mast presume, in the absence of opposing evidence, upon the authority of the certificates to the exemplification of the foreign record, showing the amendment nunc pro tunc, that the allowance of such an amendment appertained to the jurisdiction of the court. — Slaughter v. Cunningham, 24 Ala. 269; Gunn v. Howell, 27 Ala. 674.

[11.] The first charge asked, objecting to the validity of the judgment agaiust the garnishee, that he was a *163resident of the State of Alabama, cannot ‘be sustained. The garnishee pleaded that very matter to the jurisdiction of the court, and his plea was overruled. The- superior court of Georgia, having jurisdiction, over the subject of garnishment, had necessarily authority to determine whether a non-resident, under the laws of that State, could be subjected to the process Of garnishment. — Wyatt’s Adm’r v. Rambo, 29 Ala. 510.- Its decision upon that question must be deemed- conclusive in favor of the garnishee.

[12.] If there is any pi’oof in' the record, which justified the asking of the second . charge, we have not found it. We therefore regard the refusal of the charge as correct, because it was abstract, if for no other reason.

[13.] There was no error in the refusal of the third charge asked, because the plaintiff could have no right to interest upon funds collected by the defendant as his agent, for the period mentioned in the charge, unless a demand had previously been made.- — -Sally v. Capps, 1 Ala. 121; Burton v. Peck, 1 S. & P. 486; McBroom v. Governor, 6 P. 32; Kimbro v. Waller, 21 Ala. 376.

[14.] The Georgia record showed a valid judgment against the garnishee; and if the defendant paid the money upon it, he is entitled to protection. The' 4th, 5th, 6th, 9th, 10th, and 11th charges, were properly refused.

[15.] The 7th charge assumes, erroneously as we think, that the execution upon the original judgment was in the name of Calloway, then deceased, and that the execution which was returned with the endorsement, “I know of no property subject to the withiu fi. fa.," was the one upon the return of which the proceedings against the garnishee were predicated. The recitals of the^ judgment against the garnishee, as amended, show that there was a return of no property subject to the execution. Now this recital, upon a question giviug to the jurisdiction of rhe court, must be deemed, at least prima facie, correct; and it is not overturned by the fact, that one execution had been returned with a different endorsement. Both the recital, and the fact that there was an execution with a different return, may be true.

*164The 8th charge is also obnoxious to the objection, that it erroneously assumes that the proceeding against the garnishee rests upon a different return from that stated in the record.

[16.] The refusal to give the 8th and 9th charges may also be sustained upon the ground, that the sheriff’s return, “ I know of no property subject to the within fi. fa.," is equivalent, in a collateral proceeding, to a return of “ nulla bona.” It is his duty to find out any property within his bailiwick; and the presumption is, that he has discharged his duty by making diligent search; and when he says he'knows of no property subject to the Ji. fa., it should be deemed, in a collateral proceeding, at least equivalent to a general return of nulla bona.

"What we have already said leads to the conclusion, that there was do error in the charge given by the court.

[17.] The witness Johnson was competent to testify for the defendant. The judgment upon which he collected the money from the garnishee being valid, he was rather testifying against his interest in deposing to the payment of the judgment.

The judgment of the court below is reversed, and the cause remanded.