Cecil & Thrasher v. Gazan , 71 Ga. 631 ( 1883 )

Jackson, Chief Justice.

This is a claim case between a plaintiff in attachment and the claimants of two mules, which were levied on by the attachment prior to the judgment in attachment. The property was found subject, and a motion for a new trial having been denied, the claimants excepted.

1. One ground of this motion insisted upon here is, that the judgment in attachment was void, and was improperly admitted in evidence. If it were, it could not affect the claim case, because the levy was not by an execution issued upon the judgment, but by virtue of the attachment before judgment; and the issue was, is the property levied on that of the defendant in attachment, or does it belong to the claimants ? It is clear that the levy being made before the judgment against the defendant in attachment, could not be affected by á judgment which did not cause the levy at all, though that judgment were illegal. If the property be found subject to the attaching creditor, h6 must get a good judgment before he can get his money; and if that which he has be not good, he must get another. We are inclined, however, to think that at bar, though irregular, may be upheld as substantially correct, and therefore valid; but it is not necessary now to adjudicate that point. Code, §§3323, 3327, 3379.

2. The next point insisted on is that certain interrogatories were improperly rejected by the court. There was no venue; therefore, they were properly rejected, unless the plaintiff in error shows some good reason at law why they were admissible, notwithstanding this defect. The reason urged is, that they were rejected at the former trial. We do not see how the fact of their having been once rejected as illegal made them legal and admissible on the next trial. The question of their legality came up afresh, it is true, for the grant of a new trial works a trial de novo / but if they were illegally executed on the first trial, and rejected then, they were hardly healed by the grant of a new trial. It is urged that notice of objections to them in writing must be filed, if they have been twenty-four hours in court; and none were filed in this case, though these interrogatories had been in court ever since the last term; but the fact that they were then rejected, on the objection then made, made known that objection to the adverse party, gave the adverse party most emphatic and telling notice of it; more so, indeed, than an objection in writing unacted on by the court, and thus made known the objection to the opposite party, and knowledge is notice, whenever the object of the notice is to make known the objection so that the party may not be taken unawares, but may act with his eyes open. The object of notice in writing of the objection to the execution of the interrogatories is that the other side may move to continue to have the interrogatories executed, if he deem the Objections fatal; if he deem them immaterial, that he may try; in either case, that he may act advisedly, and without surprise. The notice is put on the interrogatories in writing, that there may be no mistake about it, but the court, may be certified thereof, which is answered when the court acted upon the objection and rejected th6 interrogatories before, on the preceding trial. These views become stronger in a case where the party who did not take out the interrogatories offered them. The party who took them out would hardly have to object to them in writing, or give notice of objections. Code, §§3888, 3889, 3892 ; 53 Ga., 162.

3. We cannot say that the presiding judge abused Ms discretion in overruling the motion for a new trial, on the ground of want of evidence to support the finding. The property was in the possession of the defendant in attachment when levied on; and when that was shown, it was subject, unless the claimant showed title. The title shown was a bill of sale of older date than the levy; but this bill of sale was attacked for fraud, as having been antedated; and as fraud is subtle, slight circumstances may prove its existence. The circumstances in this case are sufficient to uphold the verdict. Proof is made that defendant in attachment and one of the claimants conversed about saving the property, after the levy of the attachment, by fixing the papers, and the property remained in possession of defendant, not only long after the date on the bill of sale, but after the levy. There is also some evidence of disclaimer of interest by the claimants, and the consideration of the sale to them by defendant is not as clear and full as it might and should have been, when the transaction was attacked as fraudulent.

In view of the whole record, we cannot do otherwise than affirm the judgment. 41 Ga., 196; 42 Ib., 146.

The judge declined to certify the last ground.

4. The motion to dismiss the writ of error is good, but came too late.

Judgment affirmed.