Jordan v. Jordan , 16 Ga. 446 ( 1854 )

By the Court.

Benning, J.

delivering the opinion.

Tn this case the cross-bills of exceptions were heard together.

'One of the assignments of error made by Mrs. Jordon on her bill of exceptions was, that the Court below gave too much effect to the judgment of this Court, which had been remitted to that Court. It seems that the bill of exceptions, on which that remitted judgment had been rendered, had not been made to operate as a supersedeas, and so that subsequent to the allowance of that bill of exceptions, steps in the case had been taken, in the Court below, as if no bill of exceptions had been allowed; and that when the remittitur, with the judgment of this Court ■on 'the bill of exceptions reached that Court, the judgment was held by that Court to operate as if there had been a supersede-as in the case — as if, since the allowance of the bill of exceptions, no steps at all- had been taken in the case. On this holding of that Court, Mrs. Jordan found one of -her assignments of error.

The fifth section of the Act of 1845, which organizes this Court, contains, among others, these words: “ Upon the decision of said Supreme Court on matters of Law or principles of Equity, which may arise in the bill of exceptions,” “the Court shall cause to be certified to the Court below such decision, and award such order and direction in the premises, as may be consistent with the law and justice of the case — which decision, so rendered, and order and direction so awarded, shall be respected and carried into full effect by the Court below”. (Cobb’s Dig. 450.) The decision'remitted is to be respected and carried into full effect. This is the language of the Statute. .And if the law were different, what Wpuld the higher-Court be worth ?

What odds does it make that a supersedeas is not obtained? Whether there shall be a supersedeas or not, is optional with the party excepting. If he. does not do what is necessary to make his bill of exceptions operate as a supersedeas, the other party may go on with the case or not,, at his pleasure. If he chooses to go on, he must do so at his peril. Taking the chancees of an affirmance, he must, run the risk of a reversal-;, and as by an affirmance he would gain all the ground he passes over, so by a reversal he must lose it all. The. words whichT have •quoted, defining the effect, and operation which a judgment of this Court is to have in the Court below,, come- in the Statute -after the words which relate to a supersedeas, and therefore, they cover eases in which there may have .been no supersedeas, .as well as those in which there may have.been one.

1. The Court below was right, therefore, in holding that the, judgment of this Court was to have as much effect and operation, although there had been no supersedeas,- as it would have had, had there been a supersedeas.

The important assignment of error on the part, of .Mrs. .Jordan, is that which she founds on the refusal of the Court below, to receive her offered amendment of the bill.

The bill, as it stood under the remitted judgment of this Court, was only a bill for discovery. The effect of that .remits ted judment was, that as Carter and Jordan, the defendants in the bill, resided in Baldwin, the Court in Troup had no such jurisdiction over them as to authorize it to retain the bill against them as a bill for relief, although it might retain it as a bill for.-, discovery.

The amendment, had it been allowed, would have had the effect to turn the bill, thus being a bill for discovery only, into-one for general relief and discovery, and so to compel the de-. fendants, Carter and Jordan, to come out of the county of their. residence, Baldwin, and defend themselves in Troup, generally,. .against all the matters that would be contained in the bill. The matters already contained in the bill were many, various and somewhat complex; and they were made the foundation for a .•claim on the part of the plaintiff, amounting to from $75 000 to $100 000. And the matters contained in the offered amendment were such, that if the amendment had been received, they must have rendered the bill much more bulky and complex than it already was;

The effect, then, of the amendment had it been received,would have been to force Carter and Jordan to leave Baldwin, the county of their residence, and come to Troup, the County of the residence of the plaintiff, to defend themselves against % case of such magnitude as this. And to produce that effect was doubtless the sole purpose of the amendment, as will be seen from what was the nature of it.

What was the nature of it? Was it of such a nature that it'would have warranted the Court below in receiving it to produce the aforesaid effect ? This is the precise question.

• Among the things which the. amendment proposes to do, is to make Anthony R. Thornton, as the administrator of Reuben Thornton, deceased, a party defendant to the bill; and to state, in substance, that Carter and Jordan owe him, as such administrator, a debt; and that he owes Mrs. Jordan, as administratrix of Warren Jordan, another debt: and that the estate of Reuben Thornton which he, Anthony, represents, is insolvent — not that he, Anthony, is; all to the end that Carter. and Jordan may be prohibited from paying him, Anthony, the debt which they owe.him; and may be compelled, instead, to pay the debt to her, Mrs. Jordan, in satisfaction- of -the debt • owed to her by Anthony.

Is what is thus proposed to be stated, by way of amend men% of-sueh a character that it would have warranted the Court below dn receiving, it^ — in receiving it to produce-the aforesaid effect; for if it is-not,, there clearly is nothing proposed to be stated, which is.

It is not of such a -character, and for two reasons — First. What is thus proposed to be stated,- makes such a case1 that df taken, by itself,, it has in-it no equity; and if taken as part of the bill, it deprives the bill of all the equity which it has in it, by rendering the bill multifarious.

As to the first reason. As long as Anthony R. Thornton is himself solvent, the creditors of the estate he represents cannot come to loss by any mal-administration of the estate, on his part; and this whether the estate, itself, is solvent or insolvent. For any mal-administration he will be personally liable to those creditors; and being solvent, he will be able to make good any personal liability. This being so, what principle is there, of Law or Equity, that will justify those creditors to interfere with his administration, by compelling his debtors to pay their debts to them, rather than to him? There is none. Such interference is allowable only when the administrator is personally insolvent, so that it would be dangerous to trust the assets in his hands, or when some similar reason exists. The in-, solvency of the estate represented by the administrator, is not a similar reason.

As to the second reason. Even if the matter thus proposed to be stated, by way of amendment, contained in itself equity; yet, it is such -matter as makes a complete, new and independent case — a case that might well exist in a separate bill — a case which does not need any help from the old bill — a case to which the old bill could render no help. Such matter, if added to the old bill, would make that bill multifarious. This is clear.

Now the question is, would the Court have been warranted in receiving, by way of amendment to the bill, such matter as this — matter making a case that, in itself had no equity in it —matter that, if added to the old bill, would have rendered that bill multifarious — when the effect of receiving it would have been to force the defendants, Carter and Jordan, to leave their county and come to the plaintiff’s county, to defend themselves against all the matters that the bill, with these additions to it, would have come to contain ?

In what cases may persons be sued out of the county of their residence? It is a general rule, that all cases, whether at Law or in Equity, over which the Superior or Inferior Court or CourtS have jurisdiction, are to “ be tried in the county wherein the defendant resides”. This rule, as to cases at Law, is-the direct command of the Constitution itself; and as to.cases in Equity, it is, if not the direct command of the Constitution, of which there is great doubt in my mind, the result of a well settled principle of Law, viz: the principle, that Equity follows the Law. And ought it not, much more, to follow the-Constitution ? This is the general rule. To this general rule, however, the Constitution has, itself, made exceptions. It excepts the case of joint promissors and joint obligors, of whom' some reside in one county and some in another; also, the case of indorsers residing in a different county from that of the maker. And the Constitution makes no other exceptions. Ought' Courts of Equity to do what the .Constitution has not done ? Ought they to make exceptions which the Constitution, although having in mind thesubject of exceptions, has not thought fit to make ? Ought they to do this in the face of the fact that the expression, “ all civil cases” in this command of the Constitution — “ all civil cases which shall be tried in the county wherein the defendant resides”, when taken according to-’ its common legal import, includes eases in Equity ? I must express my doubt whether they ought or can.

Ought not the case which they should select as an additional exception, to be one in which there should, at least, be some equity against each defendant, and some privity, as between all the defendants ? Ought the case to be such, that as to those of the defendants who might reside in the county in whieh the suit might be brought,- it should be a case which would have in it no equity, for the reason, that as to them,, there would be an adequate remedy at Law; and as to them arid the other defendants — those to be brought out of their counties, it should be a case which, for another reason, would have, in it no equity, viz: the reason that, as to all, it would be multifarious ? Most certainly it ought not to be. Therefore, Courts of Equity ought not to make the present case an additional exception.

Indeed, if the case were such as not to have in it this question of jurisdiction, growing out of tbe fact that tbe- residence-of tbe defendant is in a different county from that in which the suit has been'brought, if it were the common casein which all.the defendants reside in the county of the suit; still, such matter as that in question, proposed to be added to the bill, could not, according to any rule of Equity with which we are acquainted, be admitted into the bill by way of amendment-How much more, then, is this -so, the case being as it is ?

The decision in Gilbert vs. Thomas, (3 Kelly, 575,) is a direct-authority to show that defendants are not to be brought out of the county of their residence, upon such a case as would, be made, if the matter aforesaid were admitted into’the bill, by way of, amendment.

It was said, by the Counsel for Mrs. Jordan, that these were not the objections to the amendment, presented in argument to-the Court below; and it was insisted, that therefore they ought not to be considered by this Court. But the judgment of the Court below is general — is not put on any expressed ground-If any good ground exists for it, ought not this Court, therefore, to presume that to hare been the one by-which the Court was influenced ?' Besides, are parties to be restricted in this. Court, to the same arguments which they used in the Court below?

The matter aforesaid, .then, relating to Anthony R; Thornton, was such as could not properly be allowed to be added to> the bill, by way of amendment.

But the amendment containing this matter, was offered as & whole, and was considered as a whole. This part being such as was not allowable, the whole was rendered such as was not allowable.

[2.] The refusal of the Court below, therefore, to. allow the-amendment, was right. -

Still, it is not improper, perhaps, to say that there is matter-in the proposed amendment, which it would be right to have put in the bill, viz: all that matter .which relates to the possession of the negroes in Florida, by Long, and that which relates to what the defendants realized out of other property than the lan'dS ánd negroes in Halí — the negroes in Florida, and thte lands iü Baker. These1 are proper matters for discovery, and would be in harmony with what is already in the bill; and doubtless the Court, on a proper application, would allow them to be added to the bill.

A number of exceptions, for insufficiency, were taken to the answer of B. S. Jordan. Of these, three were sustained by the Court, and the rest over-ruled. To as much of the decision as sustained the three, B. S. Jordan excepted; to the other part, or to most of it, Mrs. Jordan excepted.

The same law is'applicable to both parts of this decision.

[8.] When is an answer full ? What sort of an answer is a plaintiff in Equity entitled to have from a defendant? In Daniel/s Ohaneertf Practice it is said, that “ The nature-of the answer' which a plaintiff is entitled to require from each defendant upon the record, is sufficiently shown by the' form of words made use of in the bill for requiring an answer, -viz: * that the defendant may, upon his corporal oath, according to the best and utmost of his knowledge, recollection, information and belief, full, true, direct, perfect and sufficient answer make to all and singular the several matters and things hereinbefore contained, and that as fully and particularly as if the same Were here again repeated, and he thereunto severally and distinctly interrogated.’ ” (2 Danl. Ch. Pr. 246.)

This is no doubt so. And with this for guide, it becomes a most easy and simple affair to ascertain whether an answer is sufficiently full or not; and guided by this, we find nothing wrong in either part of this decision; and to go into a long detail to show that, would be a mere waste of time.

This judgment, therefore, ought to be affirmed; And this disposes of the case brought up by B. S. Jordan.

[4.] The Court was right in refusing to let the bill be taken as confessed by Carter. His plea — a plea in bar, was still undisposed of. As long as this -was so, the plaintiff had no light to call for an answer. The object of the plea, was, perhaps, to protect Carter from ever having to answer.

There is nothing else in the case requiring notice.

The judgments excepted to by both sides ought to be affirmed.