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Evans vs. Kilby et al.

cause arose so suddenly that counsel could not have foreseen that · he ought to make an application for continuance, or filed his briefs so that the case might be heard in his absence. Especially is this true where counsel lives in a county adjoining that in which this court is held, between the county sites of which there are facilities for communication by railroad and telegraph; and where it further appears that without any change of his wife's condition, so far as was shown, counsel did attend this court on the morning of May 9th, the case having been dismissed on May 7th. (Rep.) May 11, 1888.

Practice in Supreme Court.

Reported in the decision.

J. E. MOZLEY, for movant.

No appearance, contra.

BLECKLEY, Chief Justice.

This case being reached in its order, was dismissed May 7th for want of prosecution. On May 9th, counsel for the plaintiff in error made a motion to reinstate it, “because he was expecting his wife to be confined and she needed his personal attention.” He supports this motion with his own affidavit, saying that his wife “is expecting to be confined with her second child, and that she has been very much excited about the matter, and for this reason he has been unable to attend the Supreme Court at the time said case was dismissed.” In further support of the motion, he prcsents the affidavit of a physician who says that “heknows the condition of this lady, and that she is likely to be confined at any moment, and her husband is needed at home to attend her.” This affidavit was sworn to on May 8th, the day after the case was dismissed. It was sworn to in Cobb county. The case is from Cherokee county, but we may infer, though it does not

Evans vs. Kilby ct c!.

affirmatively appear, that the counsel resided in Cobb, as his physician there makes the affidavit. IIis own affidavit was made in this county and in this court, on the 9th of May, the day the motion was presented.

The question is whether this showing is sufficient to warrant the court in setting 'aside a regular judgment dismissing the cause

for want of prosecution; and we think the showing is not sufficient. There is

no suggestion that this lady's expectation arose so suddenly that the counsel could not have foreseen that he ought to have made an application for continuance, or else filed his briefs so that the case might have been heard in his absence. We take notice of the fact, of course, that Cobb county is an adjoining one to this, and that there are facilities for communication by railroad and telegraph between Marietta and Atlanta, the use of the one requiring perhaps an hour, and the other only a few minutes; and we can see no reason why there was not some information presented to this court in due time, why the counsel could not attend to make liis argument in the case. We think it was incumbent upon him, and that due diligence required that he should have made it known to this court in some appropriate way that he could not attend. And it turned out that without any change of condition, so far as we know, he did attend very soon after his case was dismissed. He was here in person on the morning of the 9th, the second day after this judgment was rendered, moving in person to have it set aside. We think it is a reasonable construction of the rule that providential cause will justify the continuance of a case if the continuance is moved for in time, or its reinstatement, if a proper reason or explanation why it was not moved for in time appears. So the motion is denied.

Irby vs. Livingston et al.

We cite, on the duty of counsel to give notice of conditions that will prevent attendance, Hart vs. Thomas & Co., 61 G. 470.

Motion denied.


When the comptroller-general issued execution against a defaulting

tax-collector and his sureties, for money due the State for taxes collected and not paid over, such sureties had the right to pay off said execution, or the balance due thereon, and to control the same as against the property of their principal, or property which he owned at the time of the execution of his bond. When such sureties paid off the execution and took control of the same, they were subrogated to the rights of the State, and became entitled to the same lien that the State had on all the property of the principal at the time he gave the bond. May 16, 1888.

Tax. Executions. Transfer. Principal and surety. Liens. Subrogation. Before Judge Boynton. Newton superior court. September term, 1887.

Reported in the decision.

E. F. EDWARDS and IIALL & HAMMOND, for plaintiif in


J. M. PACE and J. G. LESTER, contra.



appears from the record that one Langley, as taxcollector of the county of Newton, gave bond, with the defendants in error as his sureties, for the faithful discharge of his duties and the payment of the taxes collected by him. He afterwards made default, and the comptroller-general issued an execution against him and the sureties on his boud for the money he was due the

Irby vs. Livingston et al.

State for taxes collected by him and not paid over. The defendants in error, as his sureties, paid off this execution, and had it levied upon a certain tract of land; to which Mrs. Irby, the plaintiff in error, thereupon interposed a claim. It appears that this lot of land had been the property of Langley, and after the execution of the bond above referred to, was sold and conveyed by him, and afterwards, by proper conveyance, passed into the hands of Mrs. Irby,the claimant. The case was left to the decision of the court without the intervention of a jury, and the court adjudged that the property was subject; and Mrs. Irby thereupon excepted. The question here is, whether this property is subject, under the facts stated.

The code, $913, provides, that “the property of collectors, receivers and of their sureties is bound, from the execution of their bonds, for the payment of taxes collected and the discharge of their duties.” Counsel for the plaintiff in error contend that the rights of the State under the execution did not pass to the sureties when they paid off the execution; that the sureties were not subrogated to the rights of the State, under section 2167 of the code. That section is as follows: “Any surety who shall have paid off or discharged the judgment or execution in whole or in part, and shall have the fact of such payment by him entered on such execution by the plaintiff or his attorney, or the collecting officer, shall have the control of such execution, and the judgment upon which it is founded, to the same extent as if he was the original plaintiff therein, and be subrogated to all the rights of such plaintiff, for the purpose of reimbursing himself from his principal.”

Counsel for the plaintiff in error contend that this section of the code, which, they say, was codified from various acts of the legislature, means that where the


Irby 18. Livingston et al.

sureties have paid off an execution founded on the judgment of a court, they may control the execution to reimburse themselves; but that where the execution is not founded on the judgment of a court, no authority is given them to control the execution for the purpose of reimbursing themselves. This argument is not without some show of reason; but we think there are other sections of the code that control this case.

The doctrine of subrogation was originally a doctrine in equity; and the subject is fully treated of in the case of Dering vs. Earl of Winchelsea, 1 White & Tudor's Leading Cases in Equity, 120. Finally, the courts of common law took hold of it and allowed actions to be brought for contribution. The legislature of this State dealt with the subject in various acts, and the codifiers afterwards placed it in its present shape, covering every phase of the matter and rendering further legislation on this subject unnecessary. Section 2176 of the code provides that “a surety who has paid the debt of his principal is subrogated, both at law and in equity, to all the rights of the creditor, and in a controversy with other creditors ranks in dignity the same as the creditor whose claim he paid.” Under section 2177, “he is entitled also to be substituted in place of the creditor as to all securities held by him for the payment of the debt.” Nothing more than this need be said. This is code law; it is not codified from any act of the legislature. The compilers have referred to the acts of 1847, p. 111, but there is no act of 1847 on this subject, and it was their intention, I suppose, to refer to the act of 1857; but these sections are not codified from that act. They are independent of the acts of the legislature. These sections provide that the surety who has paid the debt is subrogated to the rights of the creditor, and is entitled to be substituted in the place of the creditor as to all se

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