Obrázky stránek

Brinkley vs. Buchanan.

cases, there is a negative pregnant implied in the words “must be made during the term at which the trial was had;" but if so, the affirmative with which the negative is pregnant is, not that extraordinary applications may be made in vacation, but at some term other than the one at which the trial was had. To draw any other affirmative in respect to extraordinary applications from this section, would be, it seems to me, to do as we will and not as we ought; would be to follow the law of force instead of the law of duty. If it be supposed that the concluding words of the section, namely: "may be heard, determined and returned in vacation,”, apply to extraordinary motions, as well as to ordinary, it may be conceded, without impairing the force of the argument; for if these words apapply to both classes of motions, it is to both alike, that is, not to original motions made in vacation, but to motions made in term, and afterwards “heard, determined and returned in vacation."

But the true view of section 3719 is that it deals with ordidinary motions only, leaving the others to be treated of in section 3721, which reads as follows: "In the case of a motion for a new trial, made after the adjournment of the court, some good reason must be shown why the motion was not made during the term, which shall be judged of by the court. In all such cases, twenty days' notice shall be given to the opposite party.” It is plain that nothing is here expressed about entertaining the application out of term time. The judge is not mentioned ; vacation is not mentioned. On the contrary, the court mentioned; the reason relied upon to excuse delay is to be judged of by the court ; and, if inference is to be indulged at all, the more natural and proper inference would seem to be that the application is to be made to the court proper.

We are forewarned by section 249 that the judge cannot exercise any power out of term time unless the authority is expressly granted. Here is no express grant, but on the contrary, an implied grant which looks away from the judge to the court. The judge (except as to equity jurisdiction, that court being always open : Code, section 4222,)

Rawson vs. Coffin.

constitutes the court, out of term, only when some previous order has been taken in term to be perfected or completed in vacation : 1 Kelly, 300; Code, section 249. With this restriction, section 3721 may be construed and administered in full harmony with the old law, and with all other provisions of the Code. By simply remembering that the general rule is, that motions for new trial are to be made at the term of trial, and that section 3719 covers all excepted cases, we shall be at little loss to discover what is meant by the words "after the adjournment of the court," or the words “during the term.” The general rule requires that motions shall be made before the court adjourns and during the very term at which the trial was had; the exception is, that in extraordinary cases motions may be made after the auljournment of that court, where good reason is shown for not moving during that term. If it had been meant to change the prior law, and allow applications for new trial to be made in vacation, it would, I think, have been done in plain terms. It is scarcely to be credited that the codifiers forgot their own rule and omitted to declare in express words, so important a power as that of sitting down at any moment and opening a solemn record of the court, made up by fival judgment, and constituting the most sacred repository of human righits.

Application denied.

WILLIAM A. Rawson, plaintiff in error, vs. Z. S. COFFIN,

55 348 56 166 68 680 73 704 84 181 84 182

trustee, defendant in error. 1. When defendant in fi. fa, went into possession of land after the date of

the judgment under bond for titles, and paid part of the purchase money, and then sold the land to claimant, who took title by deed from the vendor to defendant, with the assent and by direction of the defendant, the land

is subject to the execution. 2. The entire estate should be sold and the vendor be paid the balance of the

purchase money out of the fund raised from the sale, and the plaintiff in fi. fa. be then paid the amount of his execution, and the remainder, if any, be paid to the claimant.

Rawson vs. Coffin.

3. The jury may so mould their verdict that the rights of all parties shall be

protected, and the fund divided according to their respective rights.

Levy and sale. Executions. Bond for titles. Verdict. Before Judge JAMES Johnson. Stewart Superior Court. April Term, 1875.

Reported in the opinion.

John T. CLARKE, by JACKSON & CLARKE, for plaintiff

in error.

No appearance for defendant, .


In June, 1862, Rawson obtained judgment against the Pressleys, which was kept alive until levied upon the land in dispute. One Ward rented the land levied on in 1860 to Pressley, and in the summer of the same year sold it to him, giving him a bond for titles thereto, for the contract price of $1,600 00. Pressley thenceforward controlled it as his own, and paid $1,100 00 of the purchase money, and remained thus in possession till 1870. He then sold to Coffin, the claimant, and Ward made a deed to Coffin, with the assent and direction of Pressley, on condition that Coffin would pay bim, Ward, $150 00, $100 00 of which was paid, and $50 00 is still owing to Ward of the purchase money. When the land was levied on by the judgment and fi. fa. of Rawson, Coffin claimed it; the case was tried, and the court charged that the land was not subject on the foregoing facts which were admitted. The jury so found, and the question is, was the land subject ?

We think the court erred. The land was subject, and when sold the fund was liable to Ward, first for the balance of the unpaid purchase money; to Rawson next for payment of his fi. fa., and if any part of the fund remained, then the balance to the claimant. The Code and this court settle the principle beyond controversy, and it was in the power of the

Kaufman et al. vs. Ferst & Company et al.

jury, under the direction of the court, to mould the verdict, and the court to have rendered judgment accordingly : Code, section 3586; 25 Georgia Reports, 42; 38 Ibid., 191; 49 Ibid., 60;. Code, section 3562.

Judgment reversed.

SAMUEL KAUFMAN et al., plaintiffs in error, vs. M. FERST &

COMPANY et al., defendants in error.

55 350 61 634 65 109 67 485 79 378 84 591

55 350 105 840 55 350 f107 793 | 107 795 109 264 f109 826

1. Proceedings contemplated by the Code, sections 3211 to 3216, relate to

the granting or refusing of injunctions, receiverships, and other extraordinary remedies in equity, and not to dissolving injunctions, vacating receiver

ships, or setting aside orders on subsequent motions. 2. Consequently, a writ of error on the denial of a motion to dissolve injunc

tion, etc., cannot be heard in the supreme court in the speedy manner pro

vided by sections 3213 and 3214. 3. Such a writ of error being brought on a motion to dissolve injunction, va

cate receivership and dismiss the bill, will not be dismissed because made returnable to the term of the supreme court in progress when the decision below was made ; but, at the option of plaintiff in error, will be allowed to be entered for the next term.

Practice in the Supreme Court. Injunction. Receivers. Before the Supreme Court. July Term, 1875.


Reported in the opinion.
WEST & CUNNINGHAM; A.T. AKERMAN, for plaintiffs in




On a bill filed in October, 1874, an injunction was granted and a receiver appointed. The complainants in the bill were the defendants in error, and they sued as creditors of the plain

Kaufman et al. vs. Ferst & Company et al.

tiffs in error, who were non-residents of the state. One of the defendants in the bill was an agent of the plaintiffs in error, and was a resident, and carried on, in the city of Savannah, a banking business for his principals. A leading object of the bill was to hold the assets which were under the control of this agent, within the jurisdiction, to answer the demands of creditors. To that end the receiver was appointed to take charge of these assets; and the agent was enjoined from handing them over to his principals. The injunction likewise affected other defendants in the bill, who, as creditors of the plaintiffs in error, had commenced suits by attachment to collect their claims out of the assets. These creditors were restrained from further prosecuting their suits. The bill was defective in not praying for subpoena against the plaintiffs in error. They were thus not regularly made parties to it and were not such, at the time the injunction was granted and the receiver appointed. Afterwards, in March, 1875, this defect was cured by amendment. Not being otherwise served, they voluntarily appeared by counsel, in October, 1875, and acknowledged service. They immediately gave notice to the counsel of complainants of their intention to move to dissolve the injunction, vacate the receivership and dismiss the bill. In the following month they moved accordingly, and the motion being overruled by the court, their counsel sued out a writ of error, returnable to the present term of the supreme court. The defendants in error now move to dismiss the writ of error, on the ground that the decision complained of was made during the sitting of this court, after the commencement of the present term, and not being a decision upon an application for injunction or for the appointment of a receiver, or other extraordinary remedy in equity, the same is not subject to the expeditious review provided for by sections 3212, 3214, of the Code.

1, 2. The general rule is that bills of exceptions are to be filed here twenty days before the term at which they are to be heard: Code, section 4265. The present case, in so far as it relates to the motion to dismiss the bill in the court below, is

« PředchozíPokračovat »