Pope v. United States Fidelity & Guaranty Co., 35 S.E.2d 899

Pope v. United States Fidelity & Guaranty Co.

35 S.E.2d 899 | Ga. | 1945

Lead Opinion

1. Entries on the general execution dockets required by law to be kept by the clerk of the superior court, in the absence of a timely direct attack as to their verity, supported by proof, are conclusive as to the facts and dates recited in such public records. *70

(a) The general execution dockets, when introduced in evidence, showing entries which under the decision of this court in Pope v. United States Fidelity Guaranty Co., 198 Ga. 304 (31 S.E.2d 602), constituted a substantial compliance with the Code, § 110-1001, relating to dormancy of judgments, and the parol evidence, upon which the defendants relied as making an issue for the jury, not being competent to impeach such public records where no direct attack thereon was made, a finding was demanded as a matter of law that the judgment of which the petitioner was transferee had not become dormant.

(b) In the present equitable proceeding, in which the petitioner sought to subject to the judgment and execution after levy thereunder the property in dispute, the court did not err in directing a verdict for the petitioner as against the claimant to the property under a deed from the defendant in execution subsequently to the levy, and against the two intervenors who asserted certain rights in and to the property under conveyances from the claimant.

2. A motion for continuance is addressed to the sound discretion of the trial judge, and his judgment will not be disturbed unless it appears that there has been a manifest abuse of that discretion. The refusal to grant a continuance under the facts of the present record shows no abuse of discretion.

No. 15226. SEPTEMBER 7, 1945. REHEARING DENIED OCTOBER 5, 1945, NOVEMBER 19, 1945. STATEMENT OF FACTS BY DUCKWORTH, JUSTICE. On May 21, 1941, an execution based on a judgment of May 25, 1934, in favor of H. R. Moffett, guardian for Ellen Rosyland Lewis, against C. F. Pope, principal, and United States Fidelity Guaranty Company, surety, to which the judgment, together with the fi. fa., had been transferred on May 25, 1934, upon payment of the amount due thereunder, was levied on certain real estate as the property of C. F. Pope. Miriam B. Pope, his wife, filed, on November 3, 1941, a statutory claim to the property under a deed executed to her by C. F. Pope on September 20, 1941. On December 6, 1941, the surety company filed a suit for injunction and receiver, and prayed that its suit and the claim be consolidated. The case was before this court in Pope v. UnitedStates Fidelity Guaranty Co., 193 Ga. 769 (20 S.E.2d 13), *71 on questions raised by demurrer, reference to which may be had for a further statement of the pleadings and the contentions of the parties and the judgment of affirmance by this court with directions that C. F. Pope be made a party defendant to the proceedings. Pope was made a party defendant, a trial was had, and at the conclusion of the evidence the trial court held that the petitioner had made out a conclusive case for the appointment of a receiver, but submitted to the jury the issue raised in the claim case. The jury returned a verdict in favor of the claimant, and a motion for new trial filed by the surety company was granted. In Pope v. United States Fidelity Guaranty Co.,198 Ga. 304, the judgment of the trial court was affirmed. This court held that the evidence on the trial proved the facts alleged in the petition for a receiver, and it was pointed out that the plaintiffs in error were not contending to the contrary, their contention, as set forth in their brief, being as follows: "The issue was the dormancy of the execution on which the plaintiff undertook to found its case and obtain equitable relief. The execution had not been kept in life, and we contend that as a matter of law verdict and judgment was demanded in favor of the defendants. The discretion of the court in granting a new trial on conflicting evidence, of course, is not involved in the case. We recognize the rule in such a case. Code, § 6-1608. We complain of an abuse of discretion."

In considering this contention, this court addressed itself to the inquiry whether or not there had been a substantial compliance with the material provisions of the Code, § 110-1001, that "A judgment shall become dormant and shall not be enforced: . . 2. Unless entry is made on the execution by an officer authorized to levy and return the same and such entry and the date thereof as entered by the clerk on the general execution docket within seven years after the issuance of the execution and its record; . . provided, that when an entry is filed for record more than seven years from the date of the execution, the execution shall be recorded with all entries thereon, but if filed within seven years, the entry shall be recorded on the original record of the execution." It was ruled that a substantial compliance with the statute is shown where it appears that the following proceedings were had in the present case: The execution in question, recorded on May *72 25, 1934, on the general execution docket No. 19, page 225, in the office of the clerk of Laurens Superior Court; a levy made by the sheriff on May 21, 1941, recorded on May 22, 1941, on the general execution docket No. 22, page 271; an entry, "See general execution docket No. 22, page 271, for recording," made at the same time on the general execution docket No. 19, page 225; an entry, "See general execution docket No. 19, page 225, for original record," made on the general execution docket No. 22, page 271, at the same time; the entire execution and all entries, including the entry of levy, recorded on the general execution docket No. 22, page 271; the entries on May 22, 1941, being under circumstances where according to the evidence the space remaining in the general execution docket No. 19, page 225, was at the time of the recording of the levy insufficient to properly and clearly record the levy therein.

Thereafter in the trial court, two intervenors set up certain alleged rights, under conveyances from Mrs. Pope for a term of years, in and to the land involved, such conveyances having been made by her on October 30, 1941, and October 31, 1941, respectively. Upon the trial of the case, the petitioner and the defendants introduced in evidence the execution dockets containing entries as above mentioned. The defendants also adduced testimony which they contend made an issue for the jury as to whether or not the entries as to the levy were in fact made prior to May 26, 1941, at which time the judgment would have become dormant unless the provisions of the Code, § 101-1001, supra, were complied with. The court, on October 26, 1944, directed a verdict for the petitioner, and on December 21, 1944, on applications duly made, and jurisdiction having been retained for such purpose, ordered to be paid on account certain amounts to the petitioner's counsel as fees and to the receiver as compensation, taxes due on the property in question, and costs in the case to the clerk and the sheriff, the payments to be made from rents and other income from the property collected by the receiver. On January 11, 1945, the defendants filed exceptions pendente lite, duly certified, to the order authorizing and directing these payments on account.

The defendants filed a motion for new trial on the usual general grounds, and by amendment added two special grounds. One of these special grounds complained of the direction of the verdict for *73 the petitioner, and the other complained that the court erred in overruling a motion for continuance. It was alleged that, on the call of the case, C. F. Pope, through his counsel, moved for a continuance on the grounds that he was sick and unable to attend court, and because he was serving in the army of the United States and was entitled to a suspension or postponement of the case while on duty and particularly at that time. To the motion for new trial was attached as an exhibit a statement of the evidence offered in support of the motion for continuance, which was in substance: A certificate dated October 17, 1944, signed by Russell B. Steinhour, Capt. MAC, register, as follows: "Battey General Hospital, Rome, Ga., October 17, 1944. This is to certify that Lt. Col. Charles F. Pope O335733 Inf. is a patient in this hospital. Records this office show that Lt. Col. Pope was admitted 23 August, 1944. It is further stated that Lt. Col. Pope will require hospitalization to about 15 November, 1944." There was testimony by Mrs. Miriam B. Pope, wife of C. F. Pope, and the claimant here, that he was in Battey General Hospital in Rome, Georgia, and she had seen him the day before. He was ill, but she did not know the exact nature of his illness and had not been told. He was receiving medical attention and was in bed at least half of the time, but now was able to be up and was walking around the hospital though not able to leave it. She was sure, from her knowledge of his condition, that he could not attend court. His nervous condition was not normal and would not permit his presence in the case. He was in Dublin, Georgia, where the case was on trial, about three weeks previously, went to church and Sunday school while there, and was out practically every day. She did not know whether or not he was in a worse condition now than at that time. She is sure that a request for a leave of absence from the hospital would not have been granted, because he was not physically able to attend court. He had served overseas in combat. He had five teeth extracted about two weeks ago. He was ill when she left him at the hospital the day before. He was up and dressed in the hospital and walked to the door of the ward with her when she left.

Counsel for the defendants stated that he asked for a continuance on the ground that Pope was a party to the case, and the defendants could not safely go to trial without his presence. *74

Counsel for the petitioner stated in his place and offered to testify that Pope had been in Dublin two or three weeks during the thirty days immediately preceding the call of the case for trial on October 25, 1944. Counsel saw him walking and riding about the streets of Dublin and visiting friends, and that he appeared to be in good and normal health. This statement was not controverted or disputed.

The defendants' motion for new trial was overruled, and in the bill of exceptions brought to this court error is assigned on that judgment and on the exceptions pendente lite to the order directing payment of the amounts on account, as hereinbefore stated. 1. The testimony upon which the defendants rely as making an issue for the jury as to whether or not the entry of levy by the sheriff was entered on the execution docket No. 22, page 271, and a cross-reference made on the execution docket No. 19, page 225, before May 26, 1941, at which time the judgment here involved would become dormant, has not been set forth in the foregoing statement of facts, for the reason that in our opinion it is immaterial to a consideration of the question of dormancy. There is no dispute that the dockets contained the entries hereinbefore set forth. These books are in their essence public records. The clerk is under a duty to keep them and to record such entries therein. Code, § 24-2714 (5). In making such entries with the dates shown, he is presumed as a public officer to faithfully and accurately perform the duties devolving upon him by law. SeeGrannis v. Irvin, 39 Ga. 22; Bedgood v. McLain,94 Ga. 283 (2) (21 S.E. 529); Greer v. Ferguson, 104 Ga. 552 (30 S.E. 943); Durrence v. Northern Nat. Bank, 117 Ga. 385,388 (43 S.E. 726); Connolly v. Atlantic ContractingCo., 120 Ga. 213 (2) (47 S.E. 575); Davis v. Baldwin,185 Ga. 40, 41 (193 S.E. 892); Hogg v. Rome, 189 Ga. 298,302 (6 S.E.2d 48). Being public records, these dockets are to be taken as speaking the truth and as justifying an examiner to rely on their contents, as otherwise he might be misled to his injury and damage. Since they show the entries in respect to the levy by the sheriff to have been made on May 22, 1941, when introduced in evidence they must be accepted *75 as containing entries made at a time when the judgment had not become dormant, and not as containing entries made after the date which appears on the docket. We think that these execution dockets come within the rule stated in 20 Am. Jur. 1017, § 1164, that "what ought to be of record must be proved by the record. The record cannot be contradicted or enlarged by parol evidence. The necessary presumption arising from a record cannot be contradicted by parol evidence any more than the express words of the record itself." The rule is stated in 53 C. J. 622, § 37: "Every public record is presumed to be correct, and cannot be collaterally attacked. An investigator may rely on the truth of specific recitals contained in a public record; and one relying upon public records is protected not only by the natural equities of his position, but also by the special equities arising from the protection afforded every one who relies upon the records. It will also be presumed that the recording officer properly discharged his duty with regard to the making of the record, and that the record was made from the original document." CompareAlbritton v. Tygart, 134 Ga. 485 (68 S.E. 79); Swift v.Swift, 191 Ga. 129 (11 S.E.2d 660); Schermerhorn v.National Fire Ins. Co., 38 Ga. App. 470 (144 S.E. 395);Brinson v. Georgia Railroad Bank c. Co., 45 Ga. App. 459 (165 S.E. 321).

It does not follow, however, that, if in fact an entry be falsely made in a public record, it must always remain so. "There are certain limitations upon the doctrine that parol evidence is inadmissible to vary or contradict a record. In direct attacks upon these records, in the nature of equitable proceedings, evidence has been held admissible to impeach the record." 20 Am.Jur. 1019, § 1166. (Italics ours.) In the present case, the testimony upon which the defendants rely as raising a jury question and preventing the direction of a verdict was not offered under any special pleadings for the purpose of amending or altering the execution dockets upon proof of entries fraudulently or wrongfully made, but apparently was offered only to contradict generally the written record. Hence, as to such testimony we are not required to do more than to rule, as we do here, that this parol evidence under the state of the pleadings is without probative value as against the clear and unambiguous written evidence shown by the execution dockets, and that to impeach these public records it would be *76 first necessary to seek such relief by appropriate and timely special pleadings making a direct attack thereon, to which proceeding the clerk of the superior court, as the keeper of the records, should be made a party defendant by the defendant in execution, C. F. Pope, now a party to the present equitable proceeding. No such attack having been made, the parol evidence can not be considered, and the only competent evidence on the question of the entry of the levy by the sheriff is that manifested by the execution dockets themselves. Since the facts shown by these public records are the same as those which this court held, as the law of the case, in Pope v. United StatesFidelity Guaranty Co., 198 Ga. 304, constitute a substantial compliance with the Code, § 110-1001, relating to dormancy of a judgment, it necessarily follows that the judgment in question had not become dormant, and that, as against the claims of Mrs. Pope and the intervenors, the court did not err in directing a verdict in favor of the petitioner.

2. The motion for continuance, although stating as one of the grounds that the defendant Pope, without whom counsel asserted that he could not safely go to trial, was in the army of the United States and entitled to a suspension of the case, was, properly construed, not a motion to stay the proceedings under the Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C.A., § 521) for the period of his service and sixty days thereafter, but was an ordinary motion to continue the case to another term. Counsel for the defendants so treat it. A motion for continuance is addressed to the sound discretion of the trial judge, and his judgment will not be disturbed unless it appears that there has been a manifest abuse of that discretion.Leathers v. Leathers, 132 Ga. 211 (63 S.E. 1118); Hilton v. Haynes, 147 Ga. 725 (2) (95 S.E. 220); Fordham v.State, 148 Ga. 758 (2) (98 S.E. 267). The affidavit as to the defendant Pope being in a government hospital and requiring hospitalization until about November 15, 1944, or about three weeks after the case was called for trial, does not conclusively appear to have been made by an attending physician, and even if so made does not state that his condition was such as not to permit his attending court in Dublin. There was no evidence showing that a request for absence from the hospital had been made and refused, or that a leave would not have been granted if requested, and there was no evidence from which it could be said *77 that the judge abused his discretion in refusing to grant a continuance.

3. It appearing from the evidence that the exceptions pendente lite to the order directing payment of counsel fees, receiver's fees, taxes, and court costs on account were not filed until January 11, 1945, and that the payments had in fact been made on December 21, 1944, the question raised as to the invalidity thereof is now moot, aside from any consideration whether or not the objection is to a final judgment, and whether or not necessary parties were made in the bill of exceptions, and, accordingly, no decision is necessary.

Judgment affirmed. All the Justices concur.

ON MOTION FOR REHEARING.

Addendum

The motion for rehearing complains that the statement of facts shows only that the motion for continuance was made on the ground that Pope was sick and unable to attend court, whereas it was also made on the ground that he was serving in the army of the United States and was entitled to a suspension or postponement of his case while on duty with the army and in particular at that time. The statement of facts inadvertently omitted the reference to Pope being in the army, though showing that he was "on duty," and to further explain that expression the omission complained of has been supplied. However, the opinion clearly shows that the fact of his being in the army was taken into account in considering the merits of the motion for continuance, it being stated that, "The motion for continuance, though stating as one of the grounds that the defendant Pope, without whom counsel asserted that he could not safely go to trial, was in the army of the United States was, properly construed, not a motion to stay the proceedings under the Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C.A., § 521) for the period of his service and sixty days thereafter, but was an ordinary motion to continue the case to another term. Counsel for the defendants so treat it." We have added after the words, "in the army of the United States," the words, "and entitled to a suspension of the case."

The motion for rehearing further insists that this court ignored the pleadings in ruling that no direct attack was made upon the official records in the clerk's office, showing entries respecting the *78 sheriff's levy here involved; and, while admitting in the motion that no pleadings in the record here constituted such an attack, it was nevertheless contended that the clerk had failed to certify and send up the portion of the pleadings which would show such an attack. The movants nowhere suggested a diminution of the record, as was their privilege and duty to do under the Code, § 6-812; yet, if by their argument it is made to appear that portions of the record not sent up are material to enable this court to do complete justice, we would, under the Code, § 6-1403, on our own motion order the clerk to certify and send up such record. We have not done this for the reason that, if such pleadings are on file in the trial court, they of necessity as a matter of law must show that the clerk who made the records sought to be challenged is a party to this case, and if such records were to be certified and sent up under the order of this court and they revealed that the clerk was a party, then we would have no choice but to dismiss the writ of error because the bill of exceptions fails to make the clerk a party defendant therein, he being an essential party. Swift v. Swift, 191 Ga. 129.

The motion further contends that the portion of the record involved appearing on the original execution docket No. 19, and being a mere reference to the sheriff's levy as shown on the execution docket No. 22, is undated, and therefore the movants' evidence to show that such entry was not made in time to prevent dormancy does not contradict the record. Sufficient and conclusive answer to this contention is found in the fact that this identical record, together with that appearing on the docket No. 22, each of which refers to the other, was before this court on the last appearance of the case in Pope v. United StatesFidelity Guaranty Co., 198 Ga. 304; and, after specifically discussing the significance of the two entries, this court concluded with the statement that, "We hold that what was done by the clerk in the instant case was a substantial compliance with the provisions of the Code, § 110-1101, and was sufficient toprevent the executions in question from becoming dormant." (Italics ours.) That ruling became the law of the case thereafter. It means now that the two entries under attack were as a matter of law made at a time less than seven years from the record of the execution, and would prevent dormancy. The further substantial and controlling reason *79 why this contention of the movants can not be sustained is, that the law places around the official acts of the clerk the legal presumption that he performed his duty under the law; that hence, if the law required an entry on the docket No. 19 to be made within the seven years, it was so made; and that, in order to rebut this presumption and attack the record, it is necessary to traverse the same in a direct attack, making the clerk a party.

Sprinz v. Frank, 81 Ga. 162 (2) (7 S.E. 177), cited for the first time in the brief of counsel for the movants, is distinguishable on its facts, and is not authority for the contention that the parol testimony should have been treated as making an issue for the jury.