Shands & Co. v. Howell & Co.

| Ga. | Mar 15, 1859

By the Court.

McDonald, J.,

delivering the opinion.

The record shews no diligence on the part of the plaintiffs before tbe trial, to ascertain the evidence which they claim to be newly discovered. The proceeding shews that, on the contrary, they did not consider evidence to that point necessary to their cause.

We think, however, that there is enough in the exemplification of the judgments from California, to make out a prima facie case against the defendants who are sued in this case. It is true there were eight defendants in the cause in California, and the officer returned service on five of them only. The exemplification of the proceedings from California shew that the parties, (no doubt in this place meaning plaintiffs and defendants,), appeared by their counsel. It shews further that the defendants called for a jury. A jury was summoned, empanneled and sworn, and rendered a verdict. The names of all the defendants, eight in number, are set out in the verdict, and the jury proceed to say that they find a ver diet against the defendants. In the proceedings to dismiss the appeal in the county court, all the defendants, eight in number, are stated to be appellants. We think there is enough in the record to authorize a presumption that the defendants all appeared and defended, and the defendants to this case among them. It is by no means conclusive on them however. If it can be shewn by them that they were not served, and did not appear and defend, they may be allowed to do it. But the onus is on them.

Judgment reversed.