3 Ga. 162 | Ga. | 1847
By the Court
delivering the opinion.
This bill, filed by Felix Lewis, against George Hargraves and William L. Wynn, in Muscogee Superior Court, makes the following case. Lewis borrowed of Hargraves a sum of money 'at usurious interest, and gave for it his note, with security. The note was renewed frequently in the course of some six or eight years, at the same usurious rate of interest, until the year 1830, when Lewis, having removed to the south-west, at his instance, and the instance of Hargraves, the last renewed note was taken
Felix Lewis vs. George Hargaves and William L. Wynn. "j- Bill for discovery, &c.
In the above case, the sum of six thousand five hundred dollars having been tendered in satisfaction of the judgment in favour of Hargraves vs. Wynn, and'the said sum having been deposited in the hands of the clerk : It is ordered that the same be paid to the attorneys of George Hargraves, in full payment of saidjudgment; .unless the Court should decide that the complainant is bound to pay an additional sum, as interest upon interest.
Felix Lewis vs. George Hargaves and William L. Wynn. "j- In Equity.
The attorneys in the above case are hereby notified, that the settlement heretofore made will be final and conclusive; as I cannot allow the claim of compound interest, on the ground that equity only looks to the original loan, and requires interest thereon from its date. All the subsequent agreements by way of renewals, were not legal contracts, and are not recognised in equity ; only looking back to the original transactions.
(Signed JOSEPH STURGIS, Judge.
September 6th, 1844.
At the term of the Court following this order, it being tho first term after the filing the bill, the following order appears upon the minutes, and was taken and entered in term:
Felix Lewis vs. George Hargaves and William L. Wynn. "j- Bill for injuction.
The Court having sustained the bill, and the party defendant having accepted the money tendered, ordered, that the said bill be sustained and the injunction made perpetual.
Thus this cause stood until the May Term of the Court, 1846 ; at which time Hargraves moved a rule nisi, calling upon the complainant, Lewis, to show cause why his bill should not be dismissed; to which rule, at May Term, 1847, the complainant answered and showed for cause, that his bill was now pending; the same having been finally determined by the orders which I have hereinbefore recited. The Court, after argument had, discharged the rule, and | that is the judgment to which Hargraves, the plaintiff in error, \ excepts, and complains that tho Court erred in ruling that the [\rders passed by Judge Sturgis finally disposed of the bill,- because said orders are void and of no effect, in this, that the judge'of the Superior Court, as chancellor, has no power to grant a final decree in this cause without the intervention of a jury. Thus we have the question presented for the revision of this Court, lit involves tho validity of these orders, and the extent of the powers |0f the chancellor in Georgia without the co-operation of a jury.
. Again, if there is any equity in this bill, it is founded on this
It may be said that payment by Wynn in this case'und'er pi-ocess,, and not voluntarily, makes a difference. How can this be, when it: is charged in the bill that he confessed judgment by collusion with1 the plaintiff, in order to- charge the complainants 1 This fraudulent-collusion makes a stronger case against him than it would have1 been had he voluntarily paid the usury. This-charge-of collusions
Upon the motion to dissolve the injunction in chambers upon the filing of the answer, what question was before the chancellor 1 None other than the dissolution or retaining the injunction, and that depended alone upon the qnestion whether the equity of the bill was sworn off, by a sufficient denial of the facts stated in it. The question as to the liability over of Felix Lewis to Wynn, was not, could not have been made. That arises from a concession and not a denial of facts. That would have been regularly made by demurrer, or upon motion to dismiss for want of equity. The orders of the judge closed at once the whole litigation, and precluded the defendant from the exercise of his right of demurrer. He was not ’compelled to demur until the first term of the bill. By the third ■of our Rules in Equity, (Hotchk. 953,) a plea or demurrer shall be filed at the return term, unless the court shall grant further time for filing them. The defendant may demur, plead and answer at the same time at the first term, and they are to be separately disposed of in their order, but the filing of the plea or answer, shall in no case operate to overrule the demurrer.
The fourth rule, (Hotchk. 954,) provides that the respondent may file his answer at any time after filing a bill for injunction, and move the judge in chambers for a dissolution. Now, we infer from these rules, that the filing of the answer by the respondent before the return term of the bill, and his motion in chambers to dissolve the injunction, did not preclude him from demurring and pleading at the return term. But, upon the assumption that the ■two orders passed by the judge in chambers are valid, operative 'orders, he was precluded. Under these'Views of this subject, it is ■the judgment of this Court that those orders were passed without authority, and are void and of none effect.
Having disposed of the orders in chambers by declaring them null, we proceed to inquire into the character and effect of the order passed in the cause at the appearance term. This was claimed to be a decree, by the counsel for the plaintiff in error. "Wedonotso considerit. If we did view it in the light of a decree, We would, for the reasons in part upon which we pronounce the other orders null, declare this null also. It is very brief, and sufficiently informal. It recites that the Court, having sustained the bill, and the party defendant having accepted the money tendered, ordered, &c. It was competent for these parties to settle this cause out of court, and to agree that an order disposing of it should be entered upon the minutes of the Court. Such an agreement seems to be shadowed forth in this order ; the terms of it are not distinctly stated, but it is stated that the party defendant had accepted the money tendered in the bill. Discarding from our consideration the previous orders altogether as wholly void, we infer that this acceptance was voluntary, and that there was a settlement between the parties, and that this order is the evidence of it. We infer likewise, as the Court had the power to enter such a settlement in term, upon the minutes, that it was regularly made ; and if so, this was a final disposition of the cause.
Let the judgment of the Court below be affirmed.