116 Ga. 872 | Ga. | 1903
Strouse & Brothers, a partnership, on February 17, 1899, brought suit against J. H. Kelly, alleging that on October 1, 1888, the firm of Kelly Brothers & Porter, of which defendant was a member, executed and delivered to plaintiffs a promissory note for $1,592.45, payable four months after date; that the partnership is now dissolved ; but that since the dissolution, and within six years prior to the bringing of this suit, the defendant “ has made a written acknowledgment of his existing liability to pay the aforesaid note.” The acknowledgment referred to is contained in letters written by defendant to plaintiffs. The entire correspondence is attached to the petition as exhibits and is as follows :
*876 “Baltimore, March 19, 1898.
“ Mr. J. H. Kelly, Monticello, Ga.
“Dear Sir: — In reviewing the mercantile agency reports reflecting your present financial standing, we notice that you have been quite successful, aud the averment that you have paid off all the old indebtedness of W. A. Kelly and Kelly Bros. & Porter, and now resumed business in your own name, etc. Having no recollection that we ever received a dividend for our claim against your Social Circle firm, we have looked into the matter and find that our impressions are correct. Will you please let us know what your disposition is with reference to our unpaid note of $1,592.45 ?
“ Very truly, Strouse & Bros.”
“ Monticello, Ga., March 22, 1898.
“ Mess. Strouse Brothers, Baltimore, Md.
“ Gents:— Your favor of 19th inst. to hand, in reference to the W. A. Kelly Bros. & Porter note. In reply I beg to say that I did not know you had a claim against them. You ask what my disposition is with reference to this note. I beg to say that it is my wish to settle it with you on as reasonable terms as you will accept. Will you please give me a copy of this note with your next favor, naming your terms. ■ I hope you will be as liberal as you can, as all the other creditors have been very liberal.
“ Yours truly, J. H. Kelly.”
“Baltimore, March 24,. 1898.
“ Mr. J. H. Kelly, Monticello, Ga.
“Dear Sir: — Your favor of the 22nd to hand, and agreeable to request find herein copy of note $1,592.45, dated Oct. 1, 1888, hence due Feb. 1st and 4th, 1889, and nine years interest at 6fo, aggregating $859.68, total $2,452.13. It is very difficult for us to make a proposition, but our disposition is to be liberal; and upon due reflection we have decided to abate the $859.68, and accept the principal in settlement, which we feel assured you will appreciate. “ Very truly, Strouse & Bros.”
“Monticello, Ga., March 28, 1898.
“Mess. Strouse Brothers, Baltimore.
Gents : —Replying to your last favor, I beg to say, under ordinary circumstances your kind offer would be regarded as a fair compromise, but as this is an extraordinary case I do not regard it as*877 liberal as I think the circumstances would warrant. I know you are not controlled by what others have done, but a great many of the creditors did not blame me with the failure, as I had nothing personally to do with it; therefore they felt kindly toward me and asked me to pay them only ten cents on the dollar of original debt, and they would be satisfied, and upon their offer I have worked and paid all the claims I had knowledge of. Please take these facts into consideration and see what you can do better to relieve me of the note in question. I desire to trade with you, provided you will let me, in the future. “ Yours truly, J. H. Kelly.”
“ Baltimore, April 1, 1898.
“Mr. J. H. Kelly, Monticello, Ga.
“Dear Sir: —-Your favor to hand; and in all our experience we have never compromised a debt at 10 cts. on the dollar. We shall be very glad to do business with you, and are willing to take your trade into consideration in connection with the compromise, but must not overlook the fact that you are now in a position to. pay in full, and that we are entitled to our money, and the abatement of nearly $1,000 is quite an important amount. We think we have treated you fairly in agreeing to take the face value of the paper, and having liquidated a large part of the old matter at such a low rate of 10^>, you are surely warranted in paying ours in full. If it is not convenient for you to pay the whole amount in cash, we will accept one third now, balance payable in installments of 3 & 6 months. Anticipating this will meet your approval,
“Very truly, Strouse & Bros.”
“ Monticello, Ga., April- 4, 1898.
Mess. Strouse Bros., Baltimore.
“ Gents :- — -Replying to your favor of 1st, I beg to decline to accept your offer of settlement at present. Your points are well taken, but I think you ought to do a great deal better. Please see if you can’t. “ Yours truly, J. H. Kelly.”
It is alleged that in the letters of March 22, March 28, and April 4, the defendant “made such a written acknowledgment of his existing liability to pay [plaintiffs] the aforesaid note as is equivalent in law to a new promise to pay.” The defendant answered, admitting that he was a member of the firm of Kelly Brothers & Porter at the time the note was given, hut denied that he had ever
1. While the code declares that all demurrers must be filed at the first term (Civil Code, § 5047), still,when the petition does not set forth a cause of action, an oral motion to dismiss the case, in the nature of a general demurrer, may be made at any time before verdict. . Civil Code, § 5046; McCook v. Crawford, 114 Ga. 339 (3), and cases cited. In the present case the refusal to sustain the defendant’s motion “ to be permitted to demur, ” whether it be treated as a demurrer or as an oral motion to dismiss, can not be reviewed, for the simple reason that the record does not distinctly disclose the grounds upon which it was based. We can not tell from the record upon what ground the defendant desired to demur or move to dismiss. An oral motion to dismiss, as well as a demurrer, must distinctly set forth the grounds upon which' it is, based. It is true that an amendment “ which materially changes the cause of action ” opens the petition as amended to demurrer. Civil Code, § 5068; Griffin v. R. Co., 72 Ga. 423 (2). But this rule does not militate against the rule requiring that demurrers should set forth the grounds upon which they are based. In addition to this, the amendment in the present case did not materially change the cause of acción. It merely added as an exhibit to the petition a copy of the letter of March 22, 1898, which was already referred to therein, and there was nothing in the letter imposing liability upon the defendant; and even if it did, the letter was evidence merely supporting an allegation of the original petition.
2. In Fleming v. Roberts, 114 Ga. 634 (3), a decision by six Justices, this court held that a plaintiff was entitled to prove the allegations of his petition, without reference to whether, when proved, they constituted a cause of action. There was also a ruling to the same effect in Mayor v. Melton, 115 Ga. 153 (2), a decision concurred in by five Justices. In Crew v. Hutcheson, 115 Ga. 511 (2), it was held by three Justices that it was no error to refuse to allow a defendant to sustain by proof the allegations of a plea which set forth no defense. The writer concurred in all three
3. The judge of a trial court may in a proper case direct a verdict, but this court will not require him to give a case this direction. If he sees fit to submit to a jury a case which can have only one lawful termination, he may do so. See Western & Atlantic R. Co. v. Callaway, 111 Ga. 889; Owen v. Palmour, 115 Ga. 683, (1).
4. It is contended that the effect of the ruling made when this case was here before (113 Ga. 575) was that on the facts alleged the plaintiffs were entitled to recover, and that the defendant is concluded by that judgment. The question as to whether the plaintiffs were entitled to recover on the facts alleged has never been passed upon by this court. That question was not involved.when the case was here before. The plaintiffs had suffered a nonsuit, and in reviewing a judgment of nonsuit the only question is whether the allegata and the probata correspond. Formerly in England, when a plaintiff voluntarily abandoned his suit, a nonsuit was granted, but this could not be done against his consent. 9 Enc. .Laws of Eng. 180. At a later time it seems that a nonsuit could be properly granted at nisi prius when it was clear in point of law that the action was not maintainable, and this too although the objection appeared on the face of the record and might have been taken advantage of by motion in arrest of judgment. Tidd’s Pr. (3d Am. ed.) *867, citing 1 Campb. 256; 9 Price, 294-296. See also, in this connection, 4 Minor’s Inst. pt. 1, mar. p. 782. There is now in England no such thing as a nonsuit. 9 Enc. Laws of Eng. 180.
Even if the nonsuit of the English practice ever existed in this State, it ceased to exist soon after this court was established. In Big
5. In what way can the defendant properly call in question the right of the plaintiff to recover on the facts alleged in the petition ? Or, otherwise stated, what are the appropriate remedies available to a defendant who claims that the plaintiff is proceeding against him on a petition which wholly fails to set forth a cause of action ? He may demur at the first term, if he sees proper, but he is not bound to raise the objection at this time and in this way. The provisions of the code which declare that “ all demurrers . . shall be filed . . at the first term,” and that “ all issues of law shall be raised by demurrer,” (Civil Code, §§5047, 5049) have never been held to be mandatory except as to demurrers which go to the form of a pleading which is otherwise good in substance. It has been held that, under the latter provision of the code above cited, objec
The purpose and scope of a writ of error is clearly set forth in Stephen’s Principles of Pleading, a work which wras highly coin-mended by Judge Lumpkin in Harris v. State, supra. The author just referred to, after stating that after final judgment the unsuccessful party may bring a writ of error, and explaining the difference between the two kinds of writs of error, the one requiring the judges to review their own judgments, and the other requiring them to send the record to a court of appellate jurisdiction, in referring to the writ of error last mentioned, says: “ But the most frequent case of error is when, upon the face of the record, the judges appear to have committed a mistake in the law. This may be by having wrongly decided an issue in law brought before them by demurrer ; but it may also happen in other ways. As formerly stated, the judgment will, in general, follow success in the issue. It is, however, a principle necessary to be understood,in order to have a right apprehension of the nature of writs of error, that the judges are, in contemplation of law, bound, before in any case they give judgment, to examine the whole record; and then to adjudge either for the plaintiff or defendant, according to the legal right, as it may on the whole appear — notwithstanding, or without regard to, the issue in law, or fact, that may have been raised and decided between the parties; and this, because the pleader may from misapprehension have passed by a material question of law, without taking issue upon it. Therefore, whenever, upon examination of the whole record, right appears on the whole not to have been done, and a judgment appears to have been given for one of the parties when it should have been given for the other, this will be error in law. And it will be equally error, whether the question was raised on demurrer — or the issue was an issue in fact — or there was no issue; judgment having been taken by default, confession, &c. In all these cases, indeed, except the first, the judges have really committed no error; for it may be collected, from preceding explanations, that no record, or even a copy of the proceedings, is actually brought before them, except on demurrer; but, with respect to a writ of error, the effect is the same as if the proceedings had all actually taken place and been recorded in open court, according to the practice of ancient times.' So, on the same principle,
On writ of error the whole case as shown by the transcript is before the appellate court for inspection and review. Scott v. Sanford, 60 U. S. 393; Bank v. Smith, 24 U. S. 171; Garland v. Davis, 4 How. (U. S.) 142. “ Where the defect appears on the face of the declaration, it is settled law that a court of error is bound to notice it.” Porter, J., in Maher v. Ashmead Co., 30 Pa. St. 344. See also Rushton v. Aspinwall, Doug. 683; Town of Canterbury v. Bennett, 22 Conn. 623; Pearl v. Rawdin, 5 Day (Conn.), 244; Putnam v. Lamphier, 36 Cal. 152; Garland v. Davis, 4 How. (U. S.) 142. When it is clear that in point of law the action will not lie, a judgment in favor of plaintiff will be reversed on writ of er-.Tor. Tidd’s Pr. (3d Am. ed.) *867; Aldige v. Knox, 16 La. Ann. 180; 3 Bacon’s Ab. (Bouv. ed. 1848) 320-1. See also, in this connection, Brown’s Heirs v. Wilson, 12 B. Mon. 100. This court was originally established as a court for the “ correction of errors in law and equity.” 1 Ga. vii. It is in the present constitution described as a court for the “ correction of errors.” Civil Code, § 5836. Whether the omission of the words “in law and equity”
It may well be doubted whether the framers of the law under which this court was originally organized ever intended that it should have jurisdiction by writ of error, directly or indirectly, to review the finding of a jury on an issue of fact. In the case of Kelly v. State, 49 Ga. 16, Judge McCay said : “Indeed it is only by a sort of fiction that we have jurisdiction at all over a verdict of the jury upon the facts. . . An ordinary mind finds it difficult to discover an error of law in a judgment turning exclusively upon facts. Whether a certain amount of testimony does or does not, assuming the testimony all to be legal, establish a certain fact, would seem to have none of the elements of a legal question in it.” If it really was never intended that this court should review the decision of a jury on an issue of fact, the writer, speaking only for himself, takes this occasion to remark that it should be, for many reasons, a source of regret that the court ever assumed this jurisdiction. Justice Gantt of the Supreme Court of Missouri, in a recent address, said : “ Whatever criticisms have been indulged in the past on the failure of juries to reach exact justice, it is at least true that their recorded errors number far less than those which the highest courts have committed and confessed in their innumerable overruling cases. As for myself, the longer I live and
6. It may be said, however, that the conclusion just stated is not in accord with some of the prior rulings of this court. In Savannah, Florida & Western Ry. Co. v. Ladson, 114 Ga. 762, Third National Bank v. Ry. Co., 114 Ga. 890, and Pittsburgh Co. v. Smith, 115 Ga. 764, this court affirmed judgments in favor of plaintiffs and refused to consider the question as to whether under the facts alleged in the different petitions the plaintiffs were under the law entitled to recover. An examination of these cases will show that they were before this court on exceptions to the overruling of motions for new trials, and everything said in any of them
8. What is the power of a judge when a case is in limine and nothing has been done which would authorize either litigant to claim an estoppel on the other as to the sufficiency of his pleadings? When the case is at this stage, can there ever arise any set of circumstances which would require the judge to direct a verdict for the plaintiff when it is clear that he is not entitled to recover, or a verdict for the defendant when it is equally clear that the plea relied on constitutes in law no defense to the action? We do not think so. Whenever a judge sees that a litigant is about to prevail when in law he is not entitled to prevail, it is not only his right but his duty to prevent such a result. The judge should always interpose whenever he sees that the law is about to be violated or a grave injustice is about to be accomplished under the forms of law. It is the duty of counsel to protect their clients from wrong and injustice. It is the duty of the judge to protect the law from being outraged. Neither the laches of the litigant, nor the negligence of counsel, unless the opposite party has thereby secured the right to claim an estoppel, will absolve the judge from his sworn obligation to see that the law is administered. See the forceful remarks on this subject by Judge Nisbet in Moody v. Davis, 10 Ga. 403. See
None of the language used in the foregoing division of this opinion, dealing with the question of the power and duty of the trial judge in reference to a case which is without legal merit, is at all to be construed in any way as a reflection upon our brother of the circuit bench whose decision we are now reviewing. What is said is simply an enunciation of well-settled general principles which it is deemed wise by us to again promulgate, in the light of some expressions of our own which misled members of the bar as well as a number of the trial judges of the State. While we have been constrained to reverse the judgment in the present case, the fact of reversal under such circumstances, or any language used in reaching the conclusion that a reversal was demanded, is not to be taken as in the slightest manner indicating that the conduct of the trial judge in this casé, as on all occasions, was not that of a conscientious judge who was in good faith endeavoring to follow the rulings of this court as he understood them.
9. Let it be conceded as established that this court can on direct writ of error pass upon the question as to whether the pleadings authorize the verdict, it is then said that, under the acts of 1889 and 1892 (Civil Code, §§5528 (1), 5584), this can be done only upon a bill of exceptions containing “ a special assignment of error,” that is, one in which is “plainly and specifically set forth the errors alleged to have been committed.” The acts referred to laid down no new rule in Georgia on this subject. It was the law prior to these acts that the “ bill of exceptions shall specify plainly the decision complained of and the alleged error.” Civil Code, § 5527. The act organizing this court provided that every case should be decided “ upon the record and bill of exceptions, on the ground therein specified, and on no other grounds.” See act of 1845 in 1 Ga. ix and x. This act, so far- as relates to this rule,
If it should appear that in the foregoing discussion recent decisions of this court have been criticised with great freedom, it must-be remembered that the criticism falls as heavily upon the writer as upon his brethren. In every case which has been the subject of an expression of dissatisfaction the writer concurred in the judgment and in the reasoning upon which it was founded, and in some of them the opinions were his own work. If the length of this, opinion should bring forth the criticism that too much time, labor, and attention have been spent upon a mere question of practice, let it be remembered that upon the decision of mere questions of practice the rights of property turn, and the citizen loses his liberty'and sometimes his life. The statement has been made that at the present day not less than forty per centum of the cases passed upon by
11-14. As we have reached the conclusion that the controversy involved in the present case is properly before us, we will now consider the case on its merits. The note sued on is barred on its face. It is admitted in the petition that it is barred, and the pleader seeks to relieve this bar by an averment that there has been, within six years prior to the filing of the petition, a written acknowledgment of an existing liability which is in law equivalent to a new promise to pay. It is alleged that this acknowledgment is contained in a correspondence which is set forth in the statement of facts preceding this opinion. Let each of these letters be considered in the light of this claim. Is there anything in the letter of March 22, 1898, which would be equivalent to a new promise ? The rule is that the acknowledgment shall “ contain an unqualified admission of a present subsisting debt which the'party is liable to pay, and not merely that the debt was once due.” Dickinson v. McCamy, 5 Ga. 486 (2). See also Martin v. Broach, 6 Ga. 30; Bulloch v. Smith, 15 Ga. 398; Harrell v. Davis, 108 Ga.
Judgment reversed.