Pool v. Perdue

| Ga. | Jul 15, 1871

McCay, Judge.

I. As we understand the Constitution of 1868, a commissioned Notary Public is a Justice of the Peace for the district for which he is appointed, with all the powers and functions of such an officer. Provision for their appointment is made in that section of Article 5 of the Constitution which is directed to “Justices of the Peace.” And by section first of that article, they are classed among the constitutional judicial officers. It is well known as part' of the history of the times, that such was the intent of the framers of the Constitution, and that the language was designed simply to make one of the Justices in each district chosen by the people and the other appointed by the Governor.

2. There is no dispute but that the acts of an officer de facto cannot be attacked collaterally. The public interest in favor of this rule is too obvious to need elaboration. See Hinton vs. Lindsay, 20 Georgia Reports, 746; Code, section 120. The only question about which doubts have arisen is, when is one a de facto officer ? Clearly, however, one holding the commission of the Governor, to an office which the Governor is, by the Constitution, authorized to fill, must be, at least, a defacto officer: Code, section 120. We are of opinion that there can be but one legal commissioned Notary in a district at one time, but the proper mode to settle this is by a proceeding for the purpose, and not, as is attempted here, by collaterally attacking his acts.

3. Section 3236 of the Code provides that the affidavit may be traversed at the first term, and it has been the uniform practice to consider this right as waived if not done then. Section 15, New Rules of Court. Here it appears that the defendant had appeared and pleaded to the merits before his objections to the attachment were made. We think he was too late to do this. After a plea to the merits a defendant can make no objection to the mode by which he has been brought into Court. Code, section 3259.

4. The notice given in this case covers, almost, in terms, the requirements of the statute: Code, section 3232. Notice is required of the “pendency of the attachment, and of the proceedings therein.” The only proceeding then had here was the levy. The notice given specifies the parties, the Court, the term, and the property levied on. We think that a sufficient notice. With that, the defendant was informed of everything but that which a copy of the declaration would give him. That is not required, and he can see that, upon inquiry.

5. The objection to the answers of the witness — that is, to his failure to answer the cross-questions — was an objection to the execution, and came too late: Code, 3835; 8 Georgia Reports, 425. The other objection made was, that the questions were leading, and this objection was made and filed with the crosses, at the time the defendant crossed the interrogatories. We are inclined to think the Act of 1854 is inconsistent with section 3835 of the Code, but we do not so decide. The bill of exceptions does not present this point clearly for our decision. The Judge certifies that he understood this objection to be waived on his announcement that if he sustained it he would continue the case. And this Court would be very reluctant to grant a new trial, on such a statement. It does not affirmatively appear that the Judge overruled the objections, and we do not think such a loose statement would justify us to call what transpired a judgment of the Court, subject to reversion here. At best, the point made is upon a matter which is by no means material, and it would be rather trifling with justice, and with the public interests, to have this whole case gone over, because a leading question was put in the interrogatories.

6. Our law is very broad as to the right to sue at law: Code, section 3027. If the proper allegations are made, and the proof shows that a money verdict can settle the rights in dispute, the plaintiff may go on at law, even against his partner. Nor are we prepared, at present, to limit the jurisdiction at law to a money verdict for the plaintiff, or a verdict for the defendant. The statute expressly allows the verdict to be moulded and framed so as to give equitable relief in the case, as verdicts and decrees are rendered and framed in equity proceedings. How far this may fairly go, we are not prepared to say, until a ease arises requiring a determination of it.

7. We see nothing in the verdict to call for our interference with the judgment of the Court. The evidence is conflicting, and it was clearly the province of the jury to settle the conflict.

Judgment affirmed.