11 Ga. App. 246 | Ga. Ct. App. | 1912
1. The contract and the bond to secure its performance were made under the provisions of the act of Congress of August 13, 1894, c. 280, 28 Stat. § 278 (U. S. Comp. St. 1901, p. 2523). That section provides, among other things, that “any person or persons making application therefor, and furnishing affidavit to the department under the direction of which said work is being, or has been, prosecuted, that labor or materials for the prosecution of such work has been supplied by him or them, and payment for which has not been made, shall be furnished with a certified copy of said contract and bond, upon which said person or persons supplying such labor and materials shall have a right of action, and shall be authorized to bring suit in the name of the United States, for his or their use and benefit, against said eontractor and sureties, and to prosecute the same to final judgment and execution.” The right to sue'was not restricted to courts of the United States; and hence it was competent for the plaintiffs to ’institute their action in any court of the State, of competent jurisdiction. Mondou v. New York, New Haven & Hartford R. Co., 223 U. S. 1 (32 Sup. Ct. 169); Galveston, H. & S. A. R. Co. v. Wallace, 223 U. S. 481 (32 Sup. Ct. 205). The copy contract and bond which were offered in evidence were certified under the seal of the war department 4of the United States, by the quartermaster-general of the army.- His certificate recited that the contract and bond thereto attached were true eoqoies of the records of the war department, in the office of the quartermaster-general. There was a further certificate, signed by the acting secretary of war, that the person claiming to be such was the quartermaster-general of the army of the United States, and that full faith and credit should be given to his attestation as such.
We fully agree with counsel for the plaintiff in error that Congress has no right to prescribe rules of evidence for the State courts. Small v. Slocumb, 112 Ga. 279 (37 S. E. 481, 53 L. R. A. 130, 81 Am. St. R. 50). All that the law of this State requires is that “the best evidence which exists of the fact sought to be proved must be produced,. unless its absence is satisfactorily accounted for.” CiviT Code (1910), § 5748. Secondary evidence is defined to be “such as from necessity in some cases is substituted
The further objection was made that the certificate to the con
2-4. The magistrate was evidently of the opinion that the suit was upon an unconditional contract in writing, and that therefore it was necessary, under § 4734 of the Civil Code, for the defendants to make their defense at the first term. G., F. & A. Ry. Co. v. Sheppard, 3 Ga. App. 341 (59 S. E. 717). In Smith v. Chivers, 6 Ga. App. 154 (64 S. E. 493), it was held that the defendant in a justice’s court, when sued on an unconditional contract in writing, must appear and make his defense at the first term, either by pleading or by marking his name or that of his attorney on the docket. When the contract sued upon is not unconditional, there is no requirement that the defendant shall make his defense in the justice’s, court at the first term. He may do so at any time before final trial, even on the appeal. Lewis v. Nevils, 97 Ga. 744 (25 S. E. 409). The magistrate, therefore, erred in refusing to permit the defendants to enter their defense at -the trial.
It was also error to award judgment in favor of the plaintiffs. The plaintiffs failed to make out their case. There was no proof of the breach of the bond, nor of the amount which the plaintiffs were entitled to recover.
It is argued, in the brief of counsel for the defendants in error, that, the judgment against Goodrich having been rendered in the same court in which the suit on the bond was pending, the court had a right to take judicial cognizance of the existence of this judgment and of the amount which -had been recovered thereon against Goodrich. This contention is effectually disposed of by the decision in the case of Glaze v. Bogle, 105 Ga. 295 (31 S. E. 169). In that case a plea of res judicata was filed, setting up a judgment