Holliday & Co. v. Poole

| Ga. | Oct 12, 1886

Jackson, Chief Justice.

The plaintiff in error applied for and obtained a. writ of certiorari to a justice’s court. The court sustained the certiorari and remanded the case for a new trial. Whereupon the plaintiff in error brought the case before this, court, assigning as error the failure of the court below to make a final disposition of the case instead of remanding: it for a new hearing.

If the points made in the certiorari were pure law, unmixed with facts, then the court should have made a final judgment in the case, but if questions of fact were involved, as well as questions of law, then the court should have sent the case back for a rehearing on the issues of mixed law and fact.

The questions involved in this case are so mixed. If the surety on the note was induced to sign it, and did sign it, by false representations of the payee, that his brother had requested him to, sign as surety, and then he would sign notes of his also as surety, this does not make a case of fraud and misrepresentation without damage to the surety, but it is a case of fraud with damage, and serious damage. The damage is that it makes him obligate himself to pay this note; that it induces him to sign a paper on which he can be sued, and is here actually sued; that it puts him where he has to incur costs of suit and his own lawyers’ fees to defend the suit, and on these notes to incur the obligation to pay also the fees of the payee’s lawyers; and if there had been a recovery by the payee in the case, it would have been not only the principal and interest, but the fees — ten per cent, of the debt — for the payee’s counsel.

On this issue of fraud or no fraud, false representations or none, the testimony is directly in conflict, and the court was clearly right, we think, to remand the case for another trial.

In respect to delay given the principal without consent of the surety, we think that payment of part of the debt due is no consideration for promise to delay, and it is nudv/mpaeium.

In regard to the jurisdictional point, argued by a supplemental brief of plaintiff in error and not mentioned in the original brief, the facts show that the appeal is entered from a judgment less than one hundred dollars of principal, including fees as principal, and though the amount entered may be too little on a close calculation correctly made, yet as the appeal is from the judgment of the justice, and that is within the jurisdiction of the justice’s court, we do not see that the appeal should be dismissed, leaving that judgment of the justice to stand.

By the answer of the justice, it appears that the suits were on each of the notes separately. It was agreed that one trial should control bolh ; and thereupon he consolidated the judgment, and from it the appeal was entered-. Being an appeal from a judgment within the jurisdiction, we think it good, and we see no way consistent with law to dismiss the appeal as null and void. Nor could we, as requested, if we reversed the court below, direct a judgment greater than the jurisdictional limit of the justice’s court, even if calculation of counsel were correct, on which we do not pass.

In regard to instructions to the justice, as indicated in the 64th Georgia Reports, 576, we consider it as the better practice to give ■ them, but we are not aware that this court has ever reversed the superior court for having omitted to do so. In the 64th, the action of the court in doing so was approved and affirmed.

Judgment affirmed.