Harris v. Gray

49 Ga. 585 | Ga. | 1872

McCay, Judge.

This was a motion to dismiss the plaintiff’s suit, because, upon the face of his writ, it appeared that the debt was barred by the Limitation Act of March, 1869. The debt was due before the 1st of June, 1865, and this suit not brought until after January 1st, 1870. The reply to the motion was, first, that suit had been brought before the 1st of January, 1870; that at the October term, 1870, said suit was dismissed; that another suit had been brought within six months, which also was dismissed, and that the present suit was within six months of the dismissal of the second suit. It was stated, also, and does not seem to have been denied, that the note sued on was given for negroes. The present suit should have been brought by the 1st of January, 1870. Even if section 2972 of the Code should be held to be of force as to the Act of 1869, the present suit is not brought within six months from the dismissal of the first suit, and by the express terms of the Code, this privilege of suing again in six months can only be exercised once, if the debt be otherwise barred.

But it is said that as this was a negro debt, the plaintiff was prohibited from suing by the Constitution of 1868, and that the Act of 1869 cannot apply to his case. Assuming that the Act of 1869 does not apply to a case where plaintiff was prohibited by law from suing, the inquiry is, was he so prevented in this case? That part of the Constitution of 1868 which prevented him from suing, -was void, as declared by the Supreme Court of the United States. He was not legally prohibited from suing. It is said, however, that practically he was prohibited; that the highest tribunal of the State so held. But a void law is no law ; the plaintiff had a plain remedy. If the Judge of the Superior Court dismissed his suit he should have appealed to this Court, and if this Court refused him his rights, he had the right, and it was bis duty, to resort to the Supreme Court of the United States. On the question involved, an appeal would lie by writ of error. It is not true, therefore, that lie was prohibited from suing. He ought net to have submitted to the dismissal of his suit in 1870. It is no reply to say that the Supreme Court of the State agreed with the Circuit Judge. In all cases where there as an appellate tribunal the legal question in dispute is not finally decided until the final tribunal has passed upon it. One might just as well say he acted on the opinion of a Justice of the Peace, or a Judge of a County Court, or the Judge ■of the Superior Court. From each of these there is an appeal finally to this Court, and on certain questions from this Court to the Supreme Court of the United States. We know ■of no justification for stopping at one point in the series rather ■than another. It will occur that Justices, Superior Court ■Judges, and Supreme Court Judges, will err. In such crs:s the only remedy is to appeal, and until the appellate tribunal has passed on the question no person has a right to consider •it settled.

Every man must see to his own rights. If a Judge or a Court, even the highest Court of a State, decides one man’s ■case, and he submit to the decision, and another man, whose case is decided on the the same principle, appeals and has the ■decision reversed, the party who failed to appeal gets nothing by the superior pluck or perseverance of the appellant. Nor can he complain. He could have got the same result by the same process.

We conclude, therefore, that the plaintiff was not prevented. True, the Judge so held, but the Judge was wrong; there was no valid law prohibiting suit. That part of the Constitution of the State is either good or bad. If it is good, the plaintiff’s suit falls by it. If It is bad and allows him to sue now, it was always bad, and he could always have sued.

Judgment reversed.