Gilmer v. Warren & Scarborough , 17 Ga. 426 ( 1855 )

By the Court.

Lumpkin, J.

delivering the opinion.

What is the true construction of the agreement entered into between the Counsel of the respective parties in this case ?

When the last judgment of the Inferior Court of Crawford County was rendered in favor of Gilmer, against Warren & Scarborough, to save the latter the trouble' and expense of filing exceptions to the decision and suing out a certiorari to procure its reversal, it was stipulated that the case might be carried up to the Superior Court, as though-the regular course pointed out by law were pursued.

Upon whom, then, did the burden of .proof rest,’to set aside this judgment ? Certainly upon Warren & Scarborough. Being rendered by a Court of competent jurisdiction, it is presumed to be right, until the contrary is made to appear. Had a certiorari been prosecuted, in response to the mandate of the Court awarding it, all the evidence upon which the Inferior Court acted would have been sent up. The agreement prevented this. And yet, the Circuit Court not only presumed against the judgment of the Inferior Court, in the absence of all proof impeaching it; but went further, and refused to allow the party in whose favor the judgment was rendered, to support it by evidence.

Indeed, the Court took this view of the whole case, and put its decision distinctly upon it, viz: that the first order passed in' favor of Warren & Scarborough, fixed, conclusively, the rights of the litigating parties; and that it was not competent for the Inferior Court, subsequently, upon any testimony whatever, to annul this first order. And the Judge directed the Inferior Court to pay out the money accordingly.

[1.] We would remark, in passing, that the Superior Court bas no power to render a final judgment upon eertioraries from the Inferior Court. The Act of 1850, (Cobb’s Dig. 529,) extends only to eertioraries from Justice’s Courts.

[2.] But were the rights of Gilmer concluded by the first .judgment ? So far from it, we hold they were not at all affected by it. The garnishee, Steele, deposed at the May Term, 1850, of the Court. At that term, and before the money ad'mitted by the garnishee to be due was paid into Court, a prospective order was taken, requiring it to be paid over to the Cjerk, and by him to Col. Hunter, the Attorney of Warren & ■Scarborough, within three months. At the time the order was taken, the older fi. fa. of Gilmer was in the hands of Hicks, the Deputy Sheriff, and placed there to claim this fund. And the complaint is, that it was fraudulently withheld by some collusive arrangement between Col. Hunter and the Sheriff. Twelve months thereafter, to-wit: at the. May Term, 1851, of the Inferior Court, the money, for some reason or other, not having been paid out, but still in the hands of the Court or its officer, Gilmer comes forward and moves the Court to have it applied to his prior lien; and the Court, setting aside its former order, as having been improvidently granted, directs the fund to be paid to Gilmer.

It is not pretended that Gilmer was a party to the first or■der. The burden of his complaint is, that he had no notice of it; that his fi. fa. was withheld. His rights then, so far from being fixed, were not and could not have been prejudiced in the least by that order. He finding a fund in Court, then, raised by process of garnishment, comes forward, and planting himself upon his Statutory preference, (See Cobb’s Dig. 78,) claims, as he had a right to do, under the law, to have the money appropriated to his demand. And why was he not entitled to it ? What was it to him, whether the first order was fairly or fraudulently obtained ?

The regularity of the Gilmer execution is attacked. The Circuit Court did not adjudge this point; hence, we are not -called upon to do so. We have inspected the record from Lee County, however, upon which this precept issued, and see nothing in it which would authorize this or any other Court to vacate the proceeding. It is not true, in point of fact, that the judgment of Warren & Scarborough is against John S. Johnson individually, while the judgment in favor of Gilmer, as assignee, is against him representatively. Both judgments are against John S. Johnson, individually. There are two Johnsons — one John S. and the other John Johnson. Not only is John S. Johnson a defendant in the Gilmer judgment, but Oglesby & Jackson, as the administrators of John Johnson, deceased, are also co-defendants. But the two Johnsons are wholly distinct persons ; and we repeat, John S. Johnson, individually, is a judgment debtor in both. And while there may be some irregularity in the proceedings, they are clearly amendable; and the defects, such as they may be, are not such as to warrant the Court in setting aside or postponing this older lien.