Bridges v. Thomas , 50 Ga. 378 ( 1873 )

McCay, Judge.

1. We are not prepared to say that the plaintiff might not sue out a soi. fa. to revive a judgment, even if he had a levy pending on a fi. fa. issued upon it. If the judgment be in fact dormant it can be revived, and we do not see how the existence of a pending levy can affect it. But at any rate when this soi. fa. was sued out there was no pending levy. The Judge had dismissed it. The filing of a bill of exceptions to that judgment some time after the filing of the application for, and issuing of the soi. fa., could not make that illegal which was legal when done. If anything was illegal it was the filing of the writ of error after the plaintiff had accepted and acted on the judgment dismissing the levy: Hand vs. Armstrong, 36 Georgia, 267.

2. Upon proof that the original record was lost, the plaintiff had a right to prove the existence and contents of it by parol. We know of no rule requiring the party wishing to use a lost record to establish a copy. If established, it would necessarily be by parol; and as we have said, we know of no authority which compels a party to take that course. Mr. Greenleaf expressly says that a lost or destroyed record may be proven as other lost or destroyed papers: 1 Greenleaf on Evidence, section 509.

3. Whatever may be the effect upon third persons of the failure of the clerk to record in the book for the record of writs, the proceedings and judgment in a case in the Superior Court, we are clear that as between the parties the judgment remains a judgment, though not recorded. If the record is intended for any purpose other than the preservation of evidence of the judgment, there can be no such purpose intended as affects the rights of the parties as between themselves. The statute does not say that the judgment shall be void. There is nothing but a provision making it the duty of the clerk to record. No consequence is attached of a failure. As between the parties we can see no reason for any consequence. We think the Court was right, and that the plaintiff was entitled to his judgment of revival.

Judgment affirmed.