Jackson v. Johnson

67 Ga. 167 | Ga. | 1881

Lead Opinion

Underwood, Judge.

This was an action-brought by John M. Johnson and wife and others against Wyche S. Jackson, as administrator, on the bond of Jackson, and his securities, Reuben Jones, George Huguley and W. H. Huguley. The bond was dated March 16th, 1859, and was for the-sum .of $150,-000.00, in favor of Wm. L. Crayton, judge of probate of Chambers county, Alabama, and in form- was the bond of Wyche S. Jackson, as administrator of Hezekiah F. Erwin, deceased. The declaration alleged a devastavit by Jackson, the administrator. That there was due plaintiffs $1,796.27, with interest from the 24th day of May, 1866 at 8 percent.per annum. That at the May term of Troup superior court plaintiffs had obtained judgment against Jackson, as principal, as administrator, for that amount. That the judgment had not been paid.

The securities filed — 1st. The general issue. 2d. Noh est factum. 3d. That the bond executed by them was for the sum of $150.00 only. That after the signing of said bond by them, the bond was changed by the judge of probate, the obligee in the bond, to $150,000.00, without their knowledge or consent. These pleas were legally verified and filed at the first term of the court.

The plaintiffs introduced in evidence the decree against Jackson, the administrator, rendered at the May term of Troup superior court, 1874, described in plaintiffs’ decíaration. A certified copy of the application of Wyche S. •Jackson to be appointed administrator of H. F. Erwin, deceased, stating that the estate was of the value of $75,-ooo.oo, and a certified copy of the bond of the administrator for the penal sum of $150,000.00, with Reuben Jones, Geo. Huguley and W. H. Huguley, securities.

Defendants objected to the admission in evidence of the certified copy of the bond, which objection was overruled and the copy admitted.

The errors assigned in this case arise upon various rulings of the court as to the admissibility of evidence, the refusal to award a non-suit, and the charges of the court as excepted to, as well as refusals to charge as requested, set forth in the motion for new trial.

1. The first error assigned in the motion for a new trial is the admitting in evidence, over the objection of defendants, a certified copy of the bond sued on in this case without other evidence of its execution, there being a plea of non est factum. The facts áre these: The bond was made in the State of Alabama; the original was not only out of the state, but it appeared that the court of chancery for the eastern división of Alabama had granted an injunction to restrain the procurement of the original bond, or a certified copy thereof; the copy offered in evidence was a transcript from the record of the court of probate in the county of Chambers, Ala., which had been procured before the injunction mentioned. ■Under the provisions of our Code, sections 3761, 3763, 3766, 3767, 3769, it would seem that under , this state of facts secondary evidence is admissible. What better secondary evidence than a copy in a transcript made out and certified by the judge of the,court of probate, in which court the original is required by law to be filed and recorded, that court being a court of record ?

The bond sued on was made in the state of Alabama. By the provisions of section 2695' of the Code of Alabama. (A. J. Walker’s Code), it is provided “that copies of official bonds, or other instruments or papers required to be kept by any officer of this state, and transcripts from the books and proceedings required to be kept by any sworn officer of this state, are presumptive evidence in any civil cause, and have the same effect as if the original were produced and proved, upon the certificate of the custodian thereof that it is a true copy of the original.”

Let it be borne in mind that an injunction existed to prevent the procurement of a certified copy of the original bond. Was there not in this case a necessity for the admission of secondary evidence as contained in the transcript duly certified, and in fact was not the transcript properly authenticated evidence as high as a certified copy of the bond ? The transcript contained a copy, and the transcript was duly certified and authenticated. What is the difference ? The sections quoted from our Code clothe the judge of the superior court with discretion, and we think it was properly exercised in this case. It is objected that if the certified copy attached to the transcript would be otdinarily admissible in evidence, yet the plea of non est factum being filed, it could have no greater force than if the original were produced. This would undoubtedly be true but for the section of the Code of Alabama §2695, as quoted. If that had been the intention of the legislature of Alabama, they should have stopped at the end of the word “produced.” But the statute says “it shall have the same effect as if the original were produced and proved.” To give the statute the construction contended for would render the words “and proved” nugatory and void. When the plea of non est factum is filed and the originál is produced, it must be proved by some mode known to the law, and if the construction contended for prevails, the statute of Alabama should have stopped at the word produced ; and the question asked is answered by the statute, which says “it shall have the same effect as if the original were produced and proved,” and it follows that, giving it that effect, it must go to the jury as proved. The statute of Alabama speaks like a tyrant, and must be obeyed. ' It is not the proper office of this court to repeal any part of a statute by a construction. We have looked in vain for a case from Alabama giving a construction of this section.'

We find no error in admitting the bond in evidence, as certified in the transcript.

2. The second ground for new trial was the refusal of a non-suit, the plaintiffs having closed their case without further evidence of execution of the bond, the plea of non est factum being filed.

The Code of Alabama, section 2695, quoted, declares that a certified copy of the bond shall have the same effect as if the original had been produced .and proved. It is' contended' that the lex fori shall govern, and not the lex loci.

We think that the effect and validity, of the contract depends upon the lex loci, and in addition we may say that the act of congress declares that it .shall be ..entitled to the same faith and credit everywhere in the union. Therefore, taking together the necessity of the case, the Code . of Alabama, the certified copy in the transcript, and the act of congress, we find no error in refusing to grant a non-suit.

3. The third ground for new trial is “allowing plaintiffs to prove by Reuben Jones, over objection of defendants, that he knew the value of the estate, and that the law required bond in double the value of estate. “ We see no error in this. Jones was one of the securities, defendants sued, and this was a circumstance, if proved, to be considered by the jury in deciding what the original contract was, and how intended to be executed by the securities.

4. The fourth ground for.new trial is because the verdict of the jury is contrary to the evidence and without any evidence to support it.

We think there is evidence in the record to support the verdict. We call attention to the evidence of Judge Crayton, Edwards, Robinson, Winston, Whitner, and Mrs. Johnson. ‘‘Because the verdict of the-jury is contrary to law as to the securities.” We do not think so.

The sixth, seventh, eighth,• ninth, tenth, eleventh,’ twelfth and thirteenth grounds for new trial may be considered and disposed of together. We do not think that the verdict of the jury was contrary to those charges, or either of them, taken in connection with the whole charge of the judge.

The fourteenth ground for. new trial is, that the jury found contrary to the evidence in relation to exceptions second and fifth to auditor’s report, and in finding interest on costs. The verdict in relation to interest on costs was written off. There was evidence to sustain the verdict as to the exceptions second and fifth. ’

5. In reference to the fifteenth, sixteenth, seventeenth and eighteenth grounds for new trial, they are each in reference to refusals to charge as requested.

We think as much of the charges requested as was good law, and that did not intimate an opinion as to what was proved or not proved, was substantially given to the jury in the entire charge.

The nineteenth ground for new trial is disposed of in what is said as to the first ground for new trial.

6. With reference to the twentieth ground for new trial, we say we have been unable to find in the record the order appointing the auditor. We presume he was regularly appointed. We do not know what his powers under the order were. He made his report in writing. Each party had the right to except. The plaintiffs did so; the defendants did -not. Thé auditor would not' be allowed to add to or subtract from the report. If any of the phraseology of the report raised a doubt, he might be heard to explain that. We think the evidence rejected was not of sufficient importance or materiality as to necessarily require a different verdict.

7. As to the twenty-first ground for new trial, we think the evidence of George and W. H. Huguley, as to their intention in signing the bond; was admissible, and that ground for new trial was properly overruled.

. The same view will apply to the twenty-second ground for new trial.' ' '

And the same as to the twenty-third ground for new trial.

■ The court below, that tried the case, was satisfied with the verdict. The charge of the judge was full, fair, impartial ' and exhaustive, grasping the questions of law involved in the casé, the issues, between the counsel on each side, the issues of fact, and where and on which party the burthen of proof was, as well as what' evidence would change the onus. We are satisfied with the manner in which these questions were presented in the charge.

In reviewing the whole case, it will appear that two great questions, and, it may be said, controlling questions, were, What was the intended contract made by the administrator, and what bond was intended and agreed to be signed ? and, in connection with this, when did the securities come to the knowledge of the amount of the bond? what silent acquiescence existed from the proofs? what circumstance's ' of ratification and estoppel ? The bond was made in 1859. According to the evidence of Crayton, the securities knew, in i860, the amount of the bond ; they conversed with Shepperd about it in i860; Cray-ton-testifies they all knew the size in a very short time, except Jones, and his best'memory is that Jones knew. The evidence of Whitner,' Robinson and others, very strongly corroborates Crayton. Edwards - says he conversed with Jones about it in 1866, -The estate of H. F.' Erwin Was estimated by the administrator-, the securities," and the judge of probate, at $75,000.00. The administrator was allowed to proceed with .the administration for a' period of from -ten to fifteen 'years, without anything' being said by defendants as to the amotmt of the bond-being $150,00. The administrator was the son-in-law of George Huguley and brother in law toW. H. HuguleyandReuben Jones. . They were at the time of signing the bond all men of wealth. The two Huguleys testify they intended to sign a proper, honest, square- bond. One of them says he would have signed for a million. Undoubtedly all, except Jones, believed they were signing a bond for $150,000.00. The judge thought he was taking a bond for $150,00000. If Jones knew the bond whs for $150.00 when he signed, and knew the bond was intended to be for $150,000.00, and concealed it for years, might not a. jury infer fraud- on his part and correct the mistake ? Burge vs. Burge, 45 Ga., 301-4.

If all parties were mistaken, then the cases in court will control, and in either event the jury in a court of law-are authorized to correct the mistake.

If the securities signed the bond with the knowledge- and understanding that the bond was to be for $150,000.00,■■ if this is- shown by competent testimony, the adding, in-the face of the bond the word thousand by the principal-, and payee was not an alteration of the contract, since a-mere reduction to writing of what was in fact the agreement of both principal and securities would not be a change of the contract.

• I-f a motion for a non-suit should have been, sustained in a particular stage of the case, yet, if the defendant,-, after the motion is overruled, proceeds, and both he and-plaintiff introduce evidence on the issue made by 'the; plea of non est factum, and the evidence is sufficient to sustain a verdict for plaintiff, it will not be set aside and-, a new trial granted-because the court refused to grant a' non-suit. Hanson vs. Crawley, 41 Ga., 303; 51 lb., 528; 10 Wendell, 93 ; 17 Ib., 238 ; 44 Cal., 168; 59 Ill, 364; 53; Me., 89.

. It will be perceived upon authority that this is the rule1 from Maine to California. - ’

Evidence was introduced by both defendants and platin-, tiffs upon the issue of non est factum. The only remaining question of importance was the amount due. There was ample evidence to sustain the verdict, and the court below having sustained it, finding no material error, the judgment of the court below is affirmed.

Judgment affirmed.

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Dissenting Opinion

Crawford, Justice,

dissenting;

I cannot bring my mind to concur in the ruling of the court as to the legal effect of the certificate of the probate judge on the exemplified copy of the bond.

The Code of Alabama provides that such a paper, when so certified, shall have the same effect as if the original were produced and proved. I cannot quite see how that certificate can do more than to prove the copy to be a true copy of the original, and could no more dispense with the proof of execution, where a plea of non est factum was filed, than if the original itself were introduced and encountered by such a plea. It could hardly have been intended to have placed the certified copy above the original, and yet such a construction produces such a result.

Quite a similar statute to this existed long before the adoption of the Alabama Code. Clay’s Digest, 164, §15. Under this it was decided that the production of an examined or certified copy of an official bond was sufficient without accounting for the absence of the original, unless put in issue by plea. The section of thé Code under consideration was doubtless intended to embody the construction which had been given to that statute, or rather the rule of evidence prevailing, as consistent with it, which was that the execution of the bond by the obligors, not being controverted or put in issue by a verified plea of non est factum, was admitted as evidence, but if put-in issue, then the production of the original would be required by the court. The Code does no more than to dispense, in all cases, with the production of the original, and allows a certified copy to have the same legal effect, no more and no less than such original would have if produced and proved; that is, produced and identified.

A bond, though approved and recorded, does not preclude the obligors from putting in' issue, by a verified plea, the fact of its execution. Caskey et al. vs. Nichter, 8 Ala., 622 ; Elliott vs. Mayfield, 4 Ib., 417; Bibb vs. Hoyt, 3 Ib., 88.

The fact of execution was successfully controverted and overcome by verified pleas in the cases of Robertson vs. Coker, 11 Ala., 466, and Tanner vs. Mills, 50 Ib., 356.