13 Ga. 223 | Ga. | 1853
By the Court.
delivering the opinion.
Such an issue having been made and tendered by the parties interested in the fund raised by the sale of the property of the defendants in execution, at the December adjourned Term of the Court, 1852, the question of fraud, by consent of the parties in interest, Avas submitted to the decision of Judge
We distinctly recognize the position assumed by the defendants in error, that the Court is bound to indulge the same presumption in regard to the facts, as it regards granting a new trial in this case, as if it had been submitted to a Jury for their decision and verdict. If the record discloses evidence of fraud and collusion, in obtaining the judgment, or discloses such facts from which a Jury would have been authorized to have found by their verdict that the judgment of 1846 was fraudlently obtained; or if the evidence is in conflict in regard to that point, then a new trial ought not to be granted. But if, on an inspection of all the evidence contained in the record, there is no evidence of fraud and collusion, and no evidence from which fraud could have been fairly inf erred by a Jury, in regard to obtaining the judgment in 1846, then a new trial should be granted.
After the most careful examination of all the evidence contained in the record before us, we have not been able to find any evidence whatever which would authorize a Jury to have set aside and vacated the judgment of the Court rendered in 1846, for fraud', but on the contrary, the view which we take of the evidence submitted for that purpose, rebuts all presumption of fraud, in the rendition of that judgment.
In the first place, we start with the legal proposition, that every thing is to be presumed in favor of the regularity and good faith with which this judgment of a Court of general jurisdiction was rendered.
The only evidence offered to impeach it, is that of George M. Duncan, and the old ji. fa. which was cancelled by the judgment. Before we proceed to examine the evidence of
The judgment recites, “ that it appearing to the Coiu-t, by the statement of the plaintiff’s counsel and an inspection of the record, that the Clerk of this Court, by mistake, issued execution upon the above stated judgment, for $753 96, instead of $1753 96, called for by said judgment, itis ordered, &c.”
The statement of the plaintiff’s counsel was doubtless made to the Court as one of the officers thereof, on his professional oath, and the record which was inspected, it may fairly be presumed, was the execution docket, on which the Clerks most usually enter the amount of the principal, interest and costs, of the executions issued by them, from the amount which is entered'on the back thereof. As wo have already stated, there is not one particle of evidence that any human being knew at the time the judgment was rendered, that the old fi. fa. on its face, had been issued for the correct amount; but when we come to look into Duncan’s testimony, it is made quite apparent, that all parties acted on the idea, that it had issued for the wrong amount, according to the indorsement on the back of it by the Clerk. After the alias fi. fa. has been issued several years under the judgment, and performing its appropriate functions, it is discovered that the old fi. fa. issued for the correct amount on its face, and that no entries had, in fact, ever been made upon it by the Sheriff. - This old fi. fa. is attached to interrogatories, to be exhibited to Duncan, the
The substance of the testimony is, that there was no entry made on the old fi. fa. by the Sheriff, prior to October, 1846; that it was in his hands to be levied on the defendants’ property in time for the October sale in 1839, and was considered as levied thereon by him, though the entry of the levy was not made on the fi. fa.; that when the money arising from the sale of the defendants’ property advertised to be sold, and which was sold on the first Tuesday.in October, 1839, to satisfy sundry fi. fas. this one included among them, was distributed, this Ji. fa. received its pro rata share, considering the true amount of the fi. fa. only $753.96, which amount only, was paid.over to the plaintiffs’ attorney; that he made the entries on the alias Ji. fa. under the order of the Court in 1846, but said entries were not made upon the same information he now has, for he then-supposed said entries were on the -original fi. fa. which was not before him, and supposed to have been lost.
- When the Court, in 1846, ordered the alias fi. fa. ,to be "issued for the correct amount, it also ordered, “that George M. Duncan,'late Sheriff, do enter upon said fi. fa. any levy, or payment, which may- have been made or received on the execution erroneously issued as aforesaid;” that is to say, the Court, after hearing the evidence of Duncan, as to what entries had been made on the old Ji. fa. by him, he ivas directed to make the same on the alias ji. fa. which he says he did, but the' same weie not made on the same information he now
Rut it is said that it now appears, that judgment was rendered upon a statement of facts which were false; that the execution issued for the correct amount, and that there were no entries made on the old fi. fa. by the Sheriff. The conclusive answer to this argument is, that if the judgment has been obtained by the false testimony of a witness, the 8th section of the 8th division of the Penal Code points out the remedy. Prince, 638. When the witness upon whose false testimony the judgment was obtained, shall be prosecuted and convicted of perjury, then the judgment may be set aside on that ground. There is no evidence in this record, that the Court, or the parties, knew that the testimony was false, before or at the time the judgment was rendered; that the Court, and the parties, and Duncan, were mistaken as to the amount specified in the face of the old execution, is quite certain, but it was an innocent mistake, arising from the fact that the Clerk had backed the execution for the wrong amount.
* The best evidence that the plaintiffs in the old fi. fa. were innocently and honestly mistaken, arises from the fact that they received less than one-half of their pro rata share of the money, in the distribution of the proceeds of the sale of the defendant’s property; instead of receiving their pro rata share of $1753.96, they only received their pro rata share of $753. 96. What motive had they to make a fraudulent representation to the Court for the purpose of having the old execution set aside, and a new one issued, unless they believed it had issued for the wrong amount ? That they did 'so believe, is
There has been no fraud practised, that we can discover, upon anybody, nor any harm done to anybody by the judgment of the Court in 1846, establishing the alias fi.fa. and the entries thereon. The entries on the alias fi. fa. are precisely such as should have been made on the original, according to the true state of the facts, as disclosed by Duncan’s testimony. The whole difficulty has grown out of the .clerical error of the Clerk in backing the execution, and the omission of the Sheriff to make his entries thereon, according to the facts, as the same actually transpired, and not the improper conduct of the plaintiffs in they?, fa. for they appear to have beep diligent in the prosecution of their legal rights under their execution. The judgment of the Court in 1846, was rendered on evidence which the Court and the parties believed at that time to have been true, as is clearly apparent from all the testimony
The alias fi. fa. and the entries thereon exhibit the truth of the facts as the same transpired, according to the testimony of Duncan, as to what was done under the old fi.fa. and nothing else but the truth, and consequently, there was no fraud, either in law or fact, in obtaining the judgment of 1846, apparent on the face of this record.
- Let the judgment of the Court below be reversed.