72 Ga. 30 | Ga. | 1883
1. A motion was made to dismiss thiswrit of error, on the ground that the bill of exceptions was not served until after it had been filed in the clerk’s office. It was served by the sheriff, the regular officer of the superior court to serve copies of such papers as are entrusted to him for service by courts of record of this state. Code, §361. His service of copies of bills of exception has been recognized as valid by this court, and' his return of such service, entered on the original bill of exceptions, need not be under
These decisions recognize the superiority of the service of the sheriff over that of the party or his counsel, because it is official. The party must verify his service of a copy by his oath; the counsel his in the same way by oath ; because they have never taken an official oath which covers the service of either, and because they are interested. Thus the official oath of the sheriff is that under which he makes the return, and what is that oath ? It is to execute all writs, etc., “and in all things well and truly, without malice or partiality, perform the duties of the office of sheriff,” etc. Code, §348. Therefore, one of those duties is to serve copies of bills of exceptions, when placed in his hands therefor. Does it make any difference, if it be served within the time fixed by law, whether the sheriff, whose official duty under oath is to serve it, as held by this court, serve before or after filing? None that we can see.
The reason on which the decisions that the counsel cannot serve after filing, or the party either, is that neither can be safely entrusted with the original after filing, lest they might alter it, but the sheriff is no more likely to alter the bill of exceptions than any other writ or process which he is required to serve; and as the cases cited make it his duty to serve these copies under his official oath, we do not see any reason why he should not be entrusted with the original to make the entry thereon, there being no-more danger of his altering this original than another.
The argument ah inconvenienti in regard to service in other counties, the lack of any law for second originals, the necessary use, therefore, of the original bill to make the return upon, does not apply to this case, all the defendants being residents of the county of Monroe. In such a case, however, the plaintiff in error would be compelled to start in time with his copies for the different counties, and even then Avould find much trouble and delay, if there were many counties in which to have the copies served;
The motion to dismiss the writ of error is denied.
2. Is there equity in the bill, and should the injunction have been granted ?
The bill charges, and the facts, from complainant’s side, show that the complainant was called to account by the-legatees, before the ordinary of J asper county ; that the case was transferred, by appeal, to the superior court; thence' brought to this court by him, and a new trial awarded. Pending this case, so returned for a new trial, the bill before us was filed, and was predicated upon the broad, equity that complainant had, in good faith, applied for his discharge as co-executor with the mother of defendants;. that he obtained, as he thought, a valid discharge; and though held invalid by this court, when the case was here from the J asper appeal trial, because it appeared on the face of the record of that discharge that the citation was-not in time, yet to show the Sewages of his contract, he alleges that the parties were served in time, and proves the fact by depositions thereof by the ordinary, and others; that when thus discharged, as he honestly thought, the administration Avas turned over by him to the co-executrix; that she was guilty of all the mal-administration, or most of it, at least, after his retirement therefrom, and that, therefore, he is entitled to a decree against her, and to subject her share of the estate of testator to such just contribution as equity will cause her to make to him; that she has colluded with her children to put the Avhole burden, on him, notwithstanding she is really the guilty party, and the mismanagement occurred after his virtual resignation, of the trust; and several circumstances, such as her failure to assist in the defence, though both Avere cited, the'
The chancellor refused the injunction. Had he put the refusal on the facts which were controverted by the other side, or had he put it generally, this court, under the long ■current of its decisions, would not have reversed thejudg ment, unless, on a close and critical examination of the bill .and answers and depositions pro and cow, it were made ’to appear that the discretion vested in the chancellor had been abused. But the chancellor rests his judgment on 'the common law remedy in Jasper, and the want of jurisdiction in the superior court of Monroe county. That is the only county which has jurisdiction, if substantial relief be prayed for against the co-executrix, for that is the county of her residence, and no defendant to the bill resides in •Jasper. Neither the common law case in Jasper, nor •equity proceedings in connection with, or ancillary to, the cause pending there, would avail complainant, for want of jurisdiction there for that purpose. We are clear, therefore, that the chancellor erred in refusing the injunction ■ on that ground.
And inasmuch as there is equity in the bill, and the •facts of record here, however stubbornly contested, appear to us to require a trial before the jury to settle all the ■ equities between these parties, where all the facts can be .more thoroughly sifted and the truth elicited, the judgement is reversed, and the chancellor is directed to grant the injunction, to reinstate the bill if dismissed, and proceed to the trial thereof on the merits, provided that complainant shall give ample bond and security to respond to
When the bill shall thus be before the court for trial, it may be so amended as may be necessary to a full adjudication of the rights of all parties, and in such manner as not to collide with the other bill pending in court. Equity is ever liberal in allowing amendments, in order to reach the real justice due to parties.
Judgment reversed, with directions indicated above.