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Wagner vs. Robinson. section 2331, is to be construed as requiring such approval, in order to charge trust estates, in all cases of contract by trustees for labor or service. We do not find it necessary to decide the question now, and it is one of too much difficulty and importance to decide needlessly.
5. The verdict below was for the defendant, and the judge granted a new trial for supposed error in refusing to charge as requested and in the charge given. While there was error in the charge given, it was not error, as we have seen, against the plaintiff. The evidence made no case whatever against Mrs. Vigal or her property. The verdict of the jury was right. The plaintiff hired himself to Vigul, and he must look to Vigal or his estate for compensation. To him, loubtless, the credit was given; for the plaintiff, at first, brought suit against him individually, and it seems to have been an after-thought to attempt charging him as trustee. When a husband farms upon his wife's land, it does not follow that he is her trustee or her agent, or that he is conducting farming operations for her. These facts, if true, are to be proved and not guessed at. The ownership of land is one thing, and farming or planting another. What the husband does, is to be presumed to be done for himself and on his own account, whether he uses his wife's land or that of some other owner. If it were otherwise in this case, it would most probably have been susceptible of proof by competent evidence. The jury could not consistently, with the facts before them, have found any other verdict than the one they did find, under any legal charge that the court could have given. For that reason, we reverse the judgment granting a new trial, and leave the verdict to stand.
Sindall et al. vs. Thacker et al.
CHARLES A. SINDALL et al., plaintiffs in error, vs. H. C.
THACKER & COMPANY et al., defendants in error.
(BLECKLEY, Judge, having been of counsel in this case, did not preside.)
1. The return of service by the United States marshal should be treated as
conclusive of such service by the state courts. Our own sheriff's returns are so treated in courts other than where they are rendered, and in the courts where rendered, they can be traversed only by making the sheriff
a party. 2. Whilst the residence of the family is the legal venue of the husband and . father, it is the residence he, as the head of the family, selects; nor can his wife, in his absence and without his assent, change that residence so as to
change his venue, 3. Service at the house where he left his family, especialty when that family
are still in the same city, and where, though the wife has sold the house and furniture, she has not delivered all the latter and parted with possession of the house, is good service, and particularly if a member of the family was still at the house and received and handed it to the defendant's
attorney. 4. Appearance of the defendant and plea to the merits will cure all irregular
ities, if there be any, in the service, and whilst a defendant cannot give jurisdiction to a court which has none so as to bind third persons, such as other creditors of his, yet when the legal residence of the defendant, at the time of service, is in the jurisdiction, and he has been served, though it may be irregularly, his appearance and plea in such a case will operate
to cure the irregularity in respect to everybody. 5. A charge of the court that a judgment attacked for fraud and collusion
may be good in part, though fraudulently procured as a whole, does not hurt the party against whom it is made, if the jury, on a fair presentation of the issue of fraud or no fraud, find none at all, and sustain the whole
judgment. 6. Questions of amendments and irregularities in connection therewith, in
the district court of the United States, are matters of practice in that court, and will not be inquired into by the state courts. The final judgment of the court of the United States concludes them all so far as the state courts are called upon to consider and pass upon such federal judgment.
United States Courts. Service. Sheriff. Venue. Domicil. Waiver. Jurisdiction. Judgments. Before Judge Hall. Spalding Superior Court. February Term, 1875.
Reported in the opinion.
Sindall et al. vs. Thacker et al.
LANIER & ANDERSON; E. W. BECK, for defendants.
1. Thacker & Company moved a rule against the sheriff to show cause why certain funds raised from the sale of Sindall's property should not be paid to them. Certain creditors holding junior liens attacked the judgment of Thacker & Company, on the ground that Sindall was not served, and the United States district court for the northern district, therefore, had no jurisdiction, and on the further ground that the judgment was fraudulently obtained in that court; and again, because that court allowed an amendment of the declaration of Thacker & Company, which was never served. The United States marshal returned that he had served the defendant by leaving a copy at his most notorious place of abode, in Griffin, Georgia, which is within the northern district of Georgia. At common law this return would be conclusive, and could not be attacked at all. The statute of our state allows the return of the sheriff to be traversed, but that must be done in the court which rendered the judgment, and the sheriff must be made a party to the traverse: See Jaund vs. Keating, puge 396, and Lamb vs. Dozier, this term. We should certainly apply to the court of the United States either the common law rule or our own. If the former, the return of the marshal is conclusive; if our own law be applied, the return cannot be attackerl except in the court which rendered the judgment, and the marshal should be made a party. This would seem to conclude the attack upon this judgment for want of service.
2, 3. But conceding that it could be attacked in the saperior court of Spalding county, what are the facts and what the charge complained of. The facts are that Sindall left his family in Griffin at a house there; that at the time of service by the marshal his wife had just left it; the house and furniture was sold by her, but some of the furniture not delivered, remaining in the house, and his brother, who was in the house or returning
Simmons vs. Anderson,
to it, got the service. Sinclall appeared and pleaded to the case. The court charged substantially that if Sindall left his family in this house and they quit it, and some member was in it and got the paper, it was sufficient service. We think so, too. The residence of the family is the venue of the head of it, but it is the residence which he selects. They cannot change it without his assent. Where he leaves them is their home, until he chooses another for them, and there is no evidence that he had done this. They were still in Griffin ; had gone to a boarding-house. Mrs. Sindall had sold the furniture but had not delivered it all, and had sold the house, but the dominion was still hers, in respect to possession, even if she could have sold it and the furniture in the absence of her husband.
-4. But the appearance and plea and then withdrawal of it, cures the service even if defective.
5. In respect to the fraud used in procuring the judgment, the only error complained of is that the court charged that if any part of the judgment was for a valid debt, that part would stand. But the jury found that all of it was right and the evidence certainly sustains the verdict. It was conflicting, but there is enough to sustain it. Hence the charge did no harm to defendant.
6. In respect to any irregularities in allowing amendments or other proceedings of like character in the United States district court, we cannot see what right the circuit court of Georgia has to interfere therewith. On the whole, we think the court below right in refusing the grant of a new trial and we affirm the judgment.
JAMES M. SIMMONS, plaintiff in error, vs. WILLIAM W. AN
DERSON, defendant in error.
A waiver by a mortgagor, for himself and family, of all right to a homestead
in the property mortgaged, is binding, though such right be conferred by the constitution,
Simmons vs. Anderson,
Constitutional law. Homestead. Waiver. Before Judge WRIGHT. Monroe Superior Court. September Term, 1875.
Reported in the decision.
HAMMOND & BERNER, for plaintiff in error.
J. S. PINCKARD, for defendant.
WARNER, Chief Justice.
This was a claim case which was submitted to the decision of the court without the intervention of a jury, on the following agreed statement of facts: “That the defendant in fi. fa., James M. Simmons, on the 27th day of March, 1873, executeil to the plaintiff, W. W. Anderson, a mortgage upon one hundred acres of land; that said instrument was signed, sealed and delivered with all the solemnity necessary under the law, and is in all respects a valid mortgage; that in said instrument the said Simmons waived for himself and family all right to a homestead to or out of saiil bargained and described premises; that said mortgage has been foreclosed, and fi. fa. issued against the defendant and levied on said land; that the defendant, as the head of a family, has, since said foreclosure, issuing and levy of said fi. fa., applied for and obtained a homestead on said land according to the requirements of the law, and has, as agent for his wife, filed his claim thereto." Upon this statement of facts the court decided that the land was subject to the mortgage fi. fa. levied thereon; wheretpon the claimant excepted.
The only question made here on the foregoing statement of facts, was whether Simmons, the lefendant in the mortgage fi. fa., could waive bis right, as the head of a family, to claim a homestead in the property described in the mortgage, so as to prevent him from afterwards obtaining a homestead on the specific property mortgaged, and claiming the same as a homestead exemption, as the agent of his wife, from being subject to that mortgage fi. fa. The 1753d section of the Code de