Farmers & Exchange Bank v. Ruse, Patten & Co. , 27 Ga. 391 ( 1859 )

By the Court.

Benning, J.

delivering the opinion.

Was the judgment disolving the injunction, right?

That judgment was put on two grounds — one, that there aever was any equity in the bill; the other, that if there ever was, it had been sworn off by the answers. Were these' grounds sufficient ?

First, as to the first ground. Is it true, that there never was any equity in the bill ?

The bill seeks to have a judgment enjoined — a judgmentin favor of the defendants, against the complainant. Being a bill of that kind, it had equity in it, if its statements showed two things — first, that the complainant had had a good defence to the action at iaw; secondly, and, that, the failure to make that defence there, was owing, not to any negligence or faults in the complainant, but to fault in the defendants, or their attorney.

The statements in the bill, it is clear, showed the first of these two things. They showed, that Taylor had no authority from the complainant, to certify or accept, as complainant’s agent, the check on which, the action at law was founded.

And those statements, taken in connection with the,,6s§hier’s affidavit filed with the bill, showe^asT^emink, the second of the two things.

They showed, that tjie'judgment was dated the 19th of December, 1857, bqkíg a judgment rendered by the Superior Court of Muscogee county — that it was a judgment in attachment — thal/tKe attachment was served in Muscogee county and, also/in Richmond county — in Muscogee on the 25th of March; 1857, by a levy on a desk, a journal, a bill-book, and a sign — in Richmond, on the 26th of March, 1857, by a summons of garnishment, delivered to the Mechanics Bank of Augusta — that the complainant never heard of the altach/ment, until the 3d of December, 1857, sixteen days before the date of the judgment — that, on that day, the complainant’s Cashier, Breese, received a letter from Hatch, the Cashier of the Mechanics Bank of Augusta informing him, that that bank, had been served with a summons of garnishment, in “Ruse, Patten & Co.,vs. Farmers and E. Bank So. Ca.” and that said bank was, on that day, going to answer through him that it owed complainant “ if3,000 and up-yards.”

That, on the same clay, Breese replied to this, saying, that the information was “ all news” to him — that, on the 4th, Hatch replied to this as follows;

“ I understand from the plaintiff’s attorney, here, George T. Barnes, that they expected to obtain a judgment against yon, in Columbus, of something over #2,000” — that on the 5th Breese replied to this, requesting Hatch “to ascertain, when the suit ivas brought,” “with any further information Avhich” he could “ obtain” — that on the 6th, Hatch replied to this, saying, “ we have not been able to see the attorney, to-day, —will do so to-morrow if possible” — that on the morrow, the 8lh, Hatch Avrote again, saying “ the attorney here knows nothing of the case, Ruse, Patten & Co. vs. your Bank, only, that the suit was brought in Muscogee county, and that he Avas requested to garnishee this bank. He, will, however, write for information, and when received, I will advise you” —tha-' jTd -’A wrote, to Hatch, for the promised information several iím-.. Np.inr ¡0 the 16th — that, on the 16th, Hatch, wrote to Breese, sayljIgy:/-Mr.^attorney Barnes, has received no reply from his letter to Columbus, relative to the case of Ruse, Patten & Co. He thinks, you haddretter Avrite to a lawyer in Columbus, at once, to look into the matter.” This was but three days before the day of the judgment,'the 19th, and the letter, it is probable Avas not received by J-h^ese until the next day — tivo days before the judgment. Soon after-wards, Breese, taking the advice of Barnes, the attorney of Ruse, Patten & Co., did employ “ a lawyer in Columbus,” but it was too late; the judgment had, then, been rendered.

These facts are shown by the bill. There are some others'x which the law will assume; — namely, that a copy of the attachment, with the affidavit and bond, Avas transmitted to Richmond county, and Avas on file in the Superior Court, there, at the time when Mr. Barnes, the attorney for Ruse, Patten & Co., Avas applied to by Mr. Hatch, for information about the suit; and, that this was known to Mr. Barnes. Sections 47, 48 of the Attachment Act of 1856.

Now these papers contained all the information the complainant needed; their existence Avas known to Mr. Barnes, and they were within easy reach of him.

These things being so, by whose fault was it, that the complainant did not receive information of thesuit, time enough to enable him, to put in his defence to it? By his fault or by the fault of the defendants or their attorney? By the fault of the defendant’s or their attorney, we think. The suit being by attachment, did not of itself make itself known to the complainant. Certainly, it was owing to no fault in the complainant, that the complainant did not hear of the suit, until the 3d of December, sixteen days before the judgment was rendered. And the complainant’s conduct consequent on the news of the suit, was equally free from fault. The complainant instantly set about acquiring the information necessary to enable it, to act on the defensive. It caused inquiry about the suit, to be made of the defendants attorney, in the suit; it obtained a promise from him, to procure and furnish the desired information; it relied on this promise, eight days — not an unreasonable time — and, surely, it had the right to rely on a promise of the defendant’s own attorney. At the end of the eight days, the attorney let it be known, that he had failed to procure the information. This was within two or three days of the judgment, when it was too late, to do any thing. The failure, then to put in the defence, was not owing to any fault in the complainant. It was owing, as we think, to fault in the attorney of the defendants, or fault in themselves. Why did he say, he should have to write to Columbus for information, when he might have referred the applicant for the information, to the papers of file in the Clerk’s office in Richmond ? Why, as he did write to Columbus for information, did the defendants there, not remit it to him ? The time for judgment in their suit, was near at hand — the Court being in session. Did they dread a defence to their suit, and withhold the information lest it might be the means of bringing about a defence to the suit ? We think that there was fault here, either wilful or negligent.

Our conclusion then is, that the statements in the bill, do show; first, that the complainant, did have a defence to the suit at law; 2ndly, that, those statements, taken in connection with facts of which, the Court itself takes notice, do also show, that the failure of the complainant, to put in this defence, was owing, not to any fault in the complainant, but to fault in the defendants, or fault in their attorney. Consequently, we think that there was equity in the bill.

The next question is, was this equity sworn off, by the answers? We are not prepared to say, that it was. On the great question — the authority of Taylor, to certify or accept the check, the answer seems to make this case: viz, that Taylor was at one time the agent for the complainant, and if his authority had ever been withdrawn, they did not know of it; and further, that he was still held out to the world, as agent, at the time he certified or accepted the chock. But we are not satisfied, that this answer ought to dissolve the injunction, for 1st, the fact, if it was a fact, that Taylor was still held out as agent, seems to be new matter rather in avoidance of, than in response to, the bill; andSndly, we think it a question for the jury, whether, under the facts even as stated in the answer, the defendants ought not to have been presumed to know that Taylor acting as he did, was exceeding his authority.

The defendants are insolvent. It is better, we think, that the injunction be held up, until a trial.

Consequently, our conclusion is that the Court, below erred in dissolving the injunction.

J udgment reversed.