Pausch v. Guerrard , 67 Ga. 319 ( 1881 )

Jacicson, Chief Justice.

This action was brought to recover'damages against a constable, an agent, and two landlords, for illegally dispossessing the plaintiff of a tenement in the city of Savannah. The jury found for defendants, and a new trial having been denied him, the plaintiff excepted.

1. A motion was made to dismiss the bill of exceptions because one defendant was not served. The defendant not served was dead, and it is insisted that steps should have been taken to make her representative a party, and serve him We think not. The suit was good against the other three without making her a party originally, and it could go on anywhere against them at any stage of the cause without making her representative a party, even if she had one, of which there is no proof. Certainly the plaintiff need not delay the progress of his case until one was made. The motion to dismiss the writ of error is denied.

2. Though no actual damage be proved, if plaintiff had a case requiring damages he could recover nominal damages. Code, §§2946, 3065.

3. A constable of the city of Savannah, to all intents and purposes, includes constables of the county of Chat-ham, living and having their places of business in Savannah, and they may execute the process of the city court of Savannah in such cases as this, when directed to do so; and the direction to constables of the city is a direction to any constable of the county who lives and does business in the city.

4. The ground in respect to the charge about three months’ notice to tenants for the year was withdrawn; and well it might be, as it was favorable to the plaintiff.

5. If the plaintiff did agree to make no opposition to the lease of the premises he occupied to another for a term of years, and the landlord acted on that agreement, the plaintiff is estopped from suing the landlord or his agents for dispossessing him in order to put the new tenant for years in, over one month after he had so agreed; and it was not error so to charge the jury. Code, §3753; 60 Ga., 107. This is the substance of the principle ruled in the charge, and this record discloses sufficient evidence to authorize the charge.

6. The bond tendered was substantially a good bond if the surety was good; but the presumption is that the officer did his duty, and the plaintiff should have proved that the surety tendered was solvent and responsible. No such evidence appears here or appeared before the city court. Therefore there is no error in the charge that the bond was not a valid bond, even if it had been precisely in accordance with the city law. The point that the plaintiff must show affirmatively that the surety is good, was ruled at this term in the case of Jones et al. vs. Crawley et al. That case was an application for injunction, but the principle ruled covers this.

7. It is wholly immaterial whether the bond was- late or in time, if the surety was not good ; but it was too late if the act of 1878 allowing the tenant three days’ notice from the officer is not of force in Savannah, on account of their local law, which is a point we shall consider hereafter.

8. Whether or not the jury could find against the constable turns on the same question. If the tenant was entitled to three days’ notice from the constable, of course he was a trespasser, and liable when he turned the tenant out before the expiration of that time; unless plaintiff was estopped as to his principals; if so he would be as to their agents. And this will also apply we think, to Guerrard, the agent. If there was a tort, a trespass, all agents and principals are tortfeasors.

9. This is not a suit for malicious prosecution of a private claim, but it is an action of trespass, and the doctrine of want of probable cause and malice does not apply. Fuchter vs. Bohm, Bendheim & Co., decided this term. Besides, if the officer did not give the three days’ notice, the act of 1878, if applicable, made him a trespasser. And though that act gives a remedy on the constable's bond, that does not deprive the party injured of his old remedy in trespass against all who commit a trespass, including the constable. That act makes this act trespass.

10. There is plenty of evidence to sustain the verdict; and the only remaining question is whether the act of 1878 repeals the local law of Savannah which enacts that the process be executed immediately, while that act allows three days of grace,and requires three days’ notice by the officer to the tenant before he can legally dispossess him. On the point of estoppel there is conflicting testimony, perhaps, there being room it may be for misunderstanding, and hence whether the three days’ notice act be applicable becomes important and must be determined. That act will be found in the public laws of 1878-9, p. 145. It declares in so many words that against intruders and tenants holding over the officer who executes process un-. der “existing laws" shall give three days’ notice to the tenant before he evicts him. This local law is an existing law, and under it this constable was proceeding to dispossess this tenant. It is not necessary*to hold that the local law under which the custom of giving notice twenty-four hours before eviction grew up by construction of the term “ immediately,” used in that local law, Code, §4890, was repealed by this act of 1878-9. That act provided that the process be executed “ immediately,” and by construction or custom twenty-four hours was allowed necessarily to carry into effect the entire local law, for the subsequent section, 4892 of the Code, provides that the tenant may arrest the proceeding by making affidavit and giving bond and good security. In order to do that he must have some time to make oath before an officer authorized to administer it, and to get his security and make a -legal bond. Therefore, twenty-four hours was deemed a fair construction of the word “ immediarely ” when read, as it must be, with the entire act; and the legislature in the act of 1878-9 has merely modified this construction so as to give three days’ time instead of one day. It is just and wise — a remedial statute, and, therefore, to he liberally construed. . It was passed to allow tenants time enough to do what the general laws of the state, as well as this local law of Savannah, authorized them to do, that is to take preliminary steps to carry the case into the courts. Three days is a reasonable time for this preparation, and as the constitution of 1877 seems to advise, if not require, the general proceedings of the courts and their officers on the same subject matters to be uniform, (see Supl’t to Code, 633,) and as the broad term, “under existing laws,” embraced the proceedings of all officers without any strained construction, we ca.mot avoid the conclusion that this act of 1878-9 was designed to embrace, and does embrace, those proceedings to dispossess tenants in Savannah as in all other parts of Geor.gia, and proceedings under her local law as under any general law. We are aware that a particular law is not ordinarily repealed by a general law unless particularly named, or necessarily from its terms embraced therein, but in the light of the terms used in this act, and of the constitutional provision that “the jurisdiction, powers, proceedings and practice of all courts or - officers invested with judicial powers (except city courts,) of the same grade or class, so far as regulated by law,and the force and effect of the process, judgment and decree by such courts, severally, shall be uniform. This uniformity must be established by the general assembly.” We have no doubt that the true construction of this act allowing tenants three days’ notice by the officer before eviction, is to apply its provision to every process of every officer against tenants holding over. It must be noted that this local law is not confined to the judge of the city court of Savannah, but the process may issue by order as well of the judge of the superior court and of the ordinary. Code, §4890.

The statute of 1878-9, too, is imperative, and it declares that the officer who executes the process without notice of three days shall be liable as a trespasser. We have no alternative, therefore, but to reverse the judgment and award a new trial on this ground.

Cited for plaintiff in error: Code, §§4078, 4079, 4939, 4830; Acts of 1878-9, p. 145; Prince’s Dig., p. 495; Her. on Es., 373 ; 5 N. Y., 394; Taylor Land, and Ten., 509-512, 513, 514, 515, 516; Wade on Notice, 645 ; Add. on Con., 385; 1 Par. on Con., 509; 13 Ga., 260; 2 Add. o‘n Torts, 1198-1211 ; Cooley on Torts, 326; Taylor Land, and Ten., 479, 480, 483 ; 2 Greenleaf’s Ev., 321 ; 1 Par. on Con., 514; Wade on Notice, 700; 31 Ga., 700; 43 Ib., 209; Code, §3571.

For defendant: 63 Ga., 172 ; Code, §2967 ; Code, §§4077 et seq., 4890, 4892; 12 Ga., 409; Acts of 1839, p. 138 ; Code, §§4881, 4889; Acts 1871-2,,p. 133; 60 Ga., 107; 42 Ib., 141 ; 59 Ib., 204; 55 Ib., 648 ; 56 Ib., 615 ; 12 Ib., 564; 63 Ib., 683 ; 13 Ib., 260; 61 Ib., 496; 29 Am. R., 214; 15 Ga., 361; 6 Ire., 153; 59 N. Y., 83; 47 Md.. 310; 21 Penn., 37 ; 14 Ohio, 485 ; Code of 1863, p. 13; of 1865, p. 11; of 1873, p. 11 ; 54 Ga., 128; Acts of 1878-9, pp. 32, 49, 136, 137; Smith’s Man. of Common Law, 410-411 ; Bouv. Law Dic., par. 4; 12 Cush. Mass., 475 ; 3 N. Y., 9; 57 Barb., 434.

Judgment reversed.