14 Ga. 27 | Ga. | 1853
By the Court.
delivering the opinion.
We think that there is here a slight misapprehension of the principle which the counsel seeks to apply. The rule is well settled, that all that is necessary to show jurisdiction, must appear on the face of the record, or in the proceedings of a Court of limited jurisdiction. But we are not sure that the rule applies to a case like this. The letters of guardianship cannot properly be said to be a part of the record of the Court of Ordinary granting it, or of the proceedings. They are the act of the Clerk, or (now) of the Ordinary, acting as his own Clerk; and are intended only as frima facie evidence of the record or proceedings of the Court.
It was the opinion of this Court, when first called on to apply the principle above cited, to the Courts of Ordinary in our State, that that Court should be regarded as a Court of limited jurisdiction, and in the argument of this cause at bar, the
In the case of Worth et. al. vs. Johnson et. al. 8 Geo. R. 236, an evident inclination towards the view now entertained, and distrust of what had been previously ruled is manifested. In the subsequent case of Tucker vs. Harris, 13, Geo. R. 1 after hearing a very able and learned argument on this subject, the Court became satisfied, that the rule was not strictly applicable to our Courts of Ordinary; and so decided. This decision, as I am informed, was made by two of the Court only. Judge Warner for some good and sufficient reason, not presiding in the case. But I am authorized to say, that to the decision, after it was made, that Judge gave his entire concurrence.
We now hold, as in that case, that the Court of Ordinary in our State, cannot be deemed a Court of limited jurisdiction in the sense contemplated, by the reason of the rule under consideration. That our Court of Ordinary, as regards testate and intestate estates, is a Court of general jurisdiction, in the same way in which in our State the Superior Court is a. Court of general jurisdiction; for that Coiu’t, in the most extensive sense of the term, cannot be said to have a general jurisdiction. Over the subject of testate and intestate estates, the Court of Ordinary has entire and complete jurisdiction,, created by the Constitution, and not by Statute, until the case be-removed by appeal — just the same jurisdiction, until such-appeal, as the Superior Court has after it. As regards the-subject-matter of such estates then — every presumption in favor of the jurisdiction of the Court of Ordinary should be-made, which should be made in favor of the Superior Court, after the case reaches it. And there can be no doubt, that the rule to which we have been referring, would not be appli
In our judgment, no error Ayas committed by the Court beIoav, in admitting the letters of guardianship.
It Ayas insisted that the claim Ayas interposed for delay only; and damages Avere on this account claimed. Whether or not such damage had resulted from this claim, Ayas the issue tried in this case. The testimony in question, vyas offered, to shoAV, that Ayhile the claimant Avas in possession, his tenant, Dorster, sold this set of irons, belonging to the place, to the Avitness; and they Ayere removed from the place, to the loss and damage of the plaintiffs.
In our opinion, this Avas not such damage as is contemplated by our Statute. It Avas not damage resulting only from the delay occasioned by the claim; but it Ayas a tort committed by the tenant, for Ayhich he Avas liable; and there Ayas quoad this act, no privity between the tort feaser and these claimants. The Court below, therefore, erred in our opinion, in permitting this testimony to go as evidence of such damage.
Mr. Dougherty stated upon cross-examination, that after the decision of the Superior Court, (on points arising out of the main issue in the case, and which had been taken to this Court and decided) he had advised the Avithdrawal of the claim to avoid damages. This testimony was in our opinion correct. For reasons which will be hereafter found in the opinion of this Court, damages may be recovered, either for the interposition of a claim for delay only; or a continuance of such claim for delay only, and after a discovery of its injustice, though it Ayere in good faith interposed.
The testimony of Mr. Long was offered as showing or tending to show, that Mr. Conyers, one of the claimants, heard what he, the witness proclaimed on the day of sale, referred to in the statement of facts, as to his believing that the receipt was fraudulent, and that he would not give up the lien of the mortgage ; and that notwithstanding this, Conyers persisted in his claim. Certainly this was weak testimony, for the purpose offered. But it was some testimony, and may, according as it was received by the jury, in connection with all the proof, have been considered as serving also to show the motive of the claimants, in commencing and continuing the claim — and in this point of view it too was proper.
The Court, in all probability, intended to be understood as saying, that the question of title as such, was not then in controversy ; that is to say, that it was not necessary for the jury to determine in this proceeding, whether or not the claimants were to have and take the premises in dispute. If the Court intended to say, that the question of title was not to be considered in that investigation, and could not be looked to as evidence of the motive, in claiming or continuing the claim, then the Court was wrong. Of course, if upon trial of this issue, it was found that the claimants had strong probable cause to believe that they had a good title in law to the premises, and if they could show by proof that they had such title, this title would afford (even though it had proven upon final trial in Court, not to be the best title to the premises) strong
In two respects, this portion of the charge, was, in our opinion, wrong.
First, there was no evidence of grossly unskilful advice by counsel in the case. Nothing could be looked to as wearing the shape of such testimony, except the failure of the claimants to succeed in their cause. And we think that it would indeed be laying down a new and dangerous rule, if we were to sanction the position, that the final disposition of a cause in Court is to be considered as the measure of the counsel’s skill in advising its prosecution; or that a counsel’s success in a case, is to be always considered the test of his skill in advising its institution or continuance.
It is true, that the claimants failed in this cause; but such failure is no evidence that they were not well and judiciously advised by their counsel. We have no hesitation in saying, that in our opinion, our brother who advised, and for a time prosecuted this claim, gave judicious and proper advice. It was certainly a point of difficulty which was presented to him, depending on circumstances which he could not entirely foresee; and on legal principles, upon which there might well be a difference of opinion, among the most learned of the profession. — ■ And I have authority to say, that but for very peculiar circumstances influencing the application of the law, and which could not perhaps have been anticipated by the counsel, the opinion of this Court upon the main issue might have been different, and the result accordingly have been otherwise.
• It was erroneous then for the Court to charge upon a supposed state of facts, viz : the unskilfulness of counsel, which did not exist in the evidence; because it is not expedient, proper,
This obviously is the spirit of the Statute; and unless this construction be given to the Act, the mischief contemplated is but partially remedied. It is a remedial Statute, and should be liberally construed. And we agree with Judge Hill in holding that a continuance of a claim case, which had been commenced in good faith longer than a reasonable time after the claimant shall have discovered that he cannot legally succeed, subjects the claimant to liability under the Statute, just as if he had interposed the claim for delay only.
Upon an examination of the testimony, we are satisfied that there was some evidence on both sides. In our opinion, the preponderance was against the verdict of the jury, but not sufficiently so to suggest improper bias or gross misapprehension,