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

clearly within the rule. An exception to the general rule exists, however, by the act of 1870, Code, supra, as to certain decisions in regard to injunctions, receivers, and other extraordinary remedies in equity. But an examination of the Code from section 3211 to 3216, inclusive, will show that no decisions, even on these subjects, are embraced, unless they are made upon applications for injunction, receiver, or other extraordinary remedy. When application has been made and granted, or made and refused, the exception holds, and the decision granting or refusing may be reviewed in the short way. But after the application is granted, a subsequent motion made to dissolve, or vacate, or set aside, is not provided for unless by the general rule. Shortly before the act of 1870 it was held by this court that interlocutory rulings on injunctions, not being final judgments within the meaning of section 4250 of the Code, could not be brought here at all by a separate writ of error whilst the main cause was pending below: 40 Georgia Reports, 309; 41 Ibid., 411, 421, 544. The act of 1870 met these decisions by putting an end to all ex parte injunctions and providing for temporary restraining orders in urgent cases until a hearing could be had after notice to the defendant. The hearing provided for was to take place in conformity to the rules of law already existing for granting and dissolving injunctions; that is, what had previously been two proceedings now became one, and whatever showing the defendant might formerly have made by answer, affidavits, etc., on a motion to dissolve, was now to be made in resistance to the granting of the injunction. The complainant was to come in with all that he could urge in favor of the application, and the defendant with all that he could oppose to it, and thus a full and complete hearing was to be had. Either party was allowed to take up the decision for review in the manner pointed out by section of the Code 3213, to be heard as directed by that and the succeeding section. But we look in vain through the act of 1870 for any separate proceeding to dissolve an injunction, or any right to a writ of error thereon under that act. It is said by counsel that several cases have

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

been before this court since the passage of the act which must have come up under it, and that the original records, on examination, show that they did come up under it.

We are referred to 51 Georgia Reports, 633; 52 Ibid., 456; and 53 Ibid., 206. In none of these cases does it appear that the question now before us was raised. It not unfrequently happens that both counsel and court take matters for granted, and pass them in silence when any serious agitation of them would bring out important legal results. A precedent which has no characteristic but that of being a physical fact, is of very little consequence. Two cases seem to bear directly on the point we are considering. The first is Armstrong v8. Lewis, 48 Georgia Reports, 127. There a writ of error was dismissed, founded on the refusal of a motion to dissolve. It is true that the prior ruling of the judge in respect to granting the injunction had been to this court previously, but what weight that fact had in the determination is not indicated by the report. We adopt and follow the case irrespective of that particular element in it. The other case is that of Ballin & Company vs. Ferst & Company, 53d Georgia Reports, 551.

Holding, as we do, that the act of 1870 is confined to granting or refusing injunction, receivership, or other extraordinary remedy, and does not extend to dissolving, vacating or setting aside what has been already granted, we cannot entertain this writ of error at the present term because the plaintiffs in error moved as speedily as possible after they were made parties, and after they acknowledged service. Being out of the jurisdiction themselves, it was competent for the court to act upon their property within the jurisdiction, and upon their agent here, without their presence, and the court has so done. The question as to whether they were necessary parties to enable the court to act as it did act, must be regarded as decided, so far as it was requisite to deal with that question in granting the injunction and appointing the receiver. Doubtless, the decision made is not conclusive upon the plaintiffs in error; but it is not subject to be reviewed at their instance in any summary or indirect manner: 53d

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Bradley vs. Briggs. Georgia Reports, supra. They are vitally interested in what has been done, but it is to be remembered that they are not enjoined, and the persons who are under injunction have had their day in court. And as to the receivership, if they were not within the jurisdiction to be notified when the proceeding took place which the statute subjects to a more speedy review than ordinary cases, it was their misfortune. Their property was here, and notice was given to their agent, which was all that could be required under the circumstances. The receiver holds for all parties concerned, and it is to be presumed that the rights of all will be duly protected,

3. Although we adjudge that the writ of error was improperly brought to the present term, we will not dismiss it for that reason. In 6th Georgia Reports, 113, there is a precedent for allowing it to be entered for hearing at the next term. If counsel for plaintiff in error wish it to take that direction, it may do so. As the motion below was to dismiss the bill as well as to dissolve the injunction and vacate the receivership, there can be no doubt that there is matter in the bill of exceptions which comes properly up for review, and will be in order for hearing at the next term.

EMMA BRADLEY, plaintiff in error, vs. GEORGE W. BRIGGS,

administrator, defendant in error.

55 354 59 165

1. A judgment in the court of ordinary on an issue as to the grant of admin

istration on an estate, that the letters do issue to one Johnson, does not estop a woman claiming to be the widow of the deceased from the assertion of her right to the estate by bill in equity, though she was a party to the suit in the ordinary's court and the question there was as to her marriage to de. ceased, and though Johnson was contesting with her at the instance of the

heirs-at-law of deceased. 2. Had the grant of administration been given to her by the ordinary, the

heirs would not have been estopped, and the plea of former recovery to be

good must show a case where both parties are bound. 3. This identical case between the same parties was ruled by this court in 49

Georgia Reports, 412, and the record then was substantially the same as now.

Bradley vs. Briggs.

Judgments. Estoppel. Administrators and executors. Before Judge JAMES JOHNSON, Muscogee Superior Court. October Term, 1874.

This is the second time this case has been before this court. See Bradley vs. Johnson, administrator, 49 Georgia Reports, 412.

Reported in the opinion.

H. L. BENNING; G. E. THOMAS, for plaintiff in error.

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Mrs. Bradley brought her bill in equity against the administrator of her husband's estate, alleging that she is his widow and sole heir, and praying a decree for his property. The defendant set up in his answer that he had applied for letters of administration on Bradley's estate, and Mrs. Bradley had contested his right by caveat because she was the widow of deceased and the question of the marriage was decided against her. The court held that she was estopped, and the jury, under his charge, found against her.

1, 3. This case was here on this question and adjudicated by this court in 49 Georgia Reports, 412, and it is no longer open. The principle then ruled decides it now. The facts in the record do not affect the principle. The plaintiff in error is not estopped by the judgment before the ordinary. It is immaterial for what reason the ordinary granted Johnson the administration, he was not bound to pass upon the question of the marriage. "A judgment is not conclusive of any matter that had not of necessity to be determined before the judgment could have been given;" Hunter vs. Davis, 19 Georgia Reports, 413; 17 Vermont, 419; 3 Weud., 17.

2. The heirs-at-law of deceased, if she be not the widow, would not be estopped because they had got Johnson to apply for administration, bad it been granted to her; they are the

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Ingram vs. Jordan.

parties in interest against her in this bill, and it would be both illegal and unjust to estop her now because that case went against her. But it is useless to argue the point. It is res adjudicata in this court. There certainly has been a binding judgment here, and we must again reverse the judgment below. The evidence is by no means conclusive that the plaintiff in error is not the widow and was not the lawful wife of deceased. The record discloses evidence going strongly to show that she was. She is entitled to be heard fully upon it. She has not been heard, because the court ruled that the judgment by the ordinary estopped her, and the jury were bound to find against her no matter what they thought of the merits. Let her have a full and fair hearing.

Judgment reversed.

JOHN R. INGRAM, plaintiff in error, vs. GREEN H. JORDAN,

55 356 55 81 59 612 63 686

defendant in error.

1. That the plaintiff, by his son, the two being joint owners of the note sued

upon, caused a contagious disease to be communicated to the defendant's horses, from horses belonging jointly to the father and son, so that one of the defendant's horses died and two others were injured, does not entitle the defendant to set off his damages against the plaintiff's demand on the

note in suit, 2. But if the plaintiff, by express contract, undertook to answer for such dam

ages, they may, although unliquidated, be set-off, the Code, section 3261, declaring that the defendant may set up as a defense all claims against the plaintiff of a similar nature with the plaintiff's demand; the meaning of

which is that torts may be set against torts and contracts against contracts. 3. It is no defense to an action on a promissory note, that the plaintiff has

made false and fraudulent representations to the defendant, touching a matter wholly disconnected with the note, whereby the defendant was dam

aged. 4. When a note which is the property of two, jointly, is payable to one only,

or bearer, and is in suit in the name of the payee, neither a tort nor a contract by the ‘other joint owner alone, is a subject matter of set-off to the action, without some special equitable circumstance; and the mere fact that the plaintiff in the action is a citizen of another state, is not such a circumstance.

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