Moore, Marsh & Co. v. Brown , 81 Ga. 10 ( 1888 )

Bleckley, Chief Justice.

This case, being reached and called in its order in the forenoon, was dismissed for want of prosecution and for lack of service of the bill of exceptions on the sheriff. This lack of service was brought to the attention of the court by counsel for the defendants in error, and its bearing on the case was only slightly considered, no counsel being in attendance for tbe plaintiffs in error. In tbe afternoon, Judge Vason moved to reinstate tbe ease, and showed for cause tbat be was tbe sole counsel relied upon to represent tbe plaintiffs in error, ^fchat be bad attended in tbe forenoon for tbat pui’pose, tbat before tbe case was reached and called and while out of tbe court-room, be was taken violently ill, and tbat owing to tbat fact and bis being occupied in procuring and using remedies, be was unable to return to tbe room or to report bis condition to tbe court before tbe noon recess. lie insisted tbat tbe sheriff was not a necessary party, and tbat by tbe act of 1881, (addenda to tbe code, page IX, §4272b,) service of tbe bill of exceptions upon him was dispensed with. Counsel for tbe defendants in error was afterwards beard upon this motion, and tbe court on due consideration, being convinced tbat Judge Vason’s absence was tbe result of providential cause, reinstated tbe case; and being also of tbe opinion tbat on tbe peculiar facts disclosed by tbe record, it falls within tbe act of 1881, cited above, and tbat service on tbe sheriff was not required, tbe court announced tbat tbe case would be either continued or beard on tbe briefs of counsel, as counsel for defendant in error might prefer. Oral argument would not be beard, because tbe cases of another circuit bad been entered upon before tbe motion to reinstate was decided. Thereupon be filed bis briefs, those for tbe plaintiffs in error having been already filed, and tbe court is now ready to dispose of tbe writ of error on its merits. Tbe points of practice involved in tbe foregoing details may be thus summarized:

1. Where tbe sole counsel in attendance for tbe plaintiff in error is prevented by a sudden access of illness from being in tbe court-room when tbe case is called, and tbe writ of error is dismissed, it will be reinstated upon bis motion made tbe same day, and will, if tbe cases of another circuit have been entered upon before the motion to reinstate is decided, be either continued or heard upon the briefs of counsel.

2. Though on a rule against the sheriff, to which several creditors are parties, the losing creditors pray relief from the sheriff' beyond the amount of the fund admitted by him to be on hand, yet if he be no partyto their motion for a new trial, and if the writ of error be founded alone upon a denial of that motion, he need not, under the act of 1881, be a party to the writ of error nor be served with the bill of exceptions. As to him the verdict of the jury is final, except as to paying out the fund, in respect to which he makes no contest.

3. Passing on to the main case, we can discover no error committed by the court, unless it was in allowing counsel' for the mortgage ji. fas. to open and conclude the argument. We are not quite sure as to this question, but are inclined to think that as the vital issue was fraud in the mortgages, and as the burden of proving fraud was on the attaching creditors, the attaching creditors were entitled to open and conclude. Johnson vs. Martin, 25 Ga. 269; McKibbon vs. Folds, 38 Ga. 239, and cases cited; Buchanan vs. McDonald, 40 Ga. 286; Loudon, vs. Coleman, 62 Ga. 147; Rules Practice Superior Court, No. 45. But the verdict of the jury was undoubtedly correct, and this being so, it would be idle to remand the ease to have it argued over. There is no suggestion in the record of newly-discovered evidence, and were the case tried again on the same testimony, the order of argument would not or at least ought not to change the result.

4. We cannot hold that the charge of the court was error, or that it did not fully cover the case, or that a new trial ought to be granted for any of the failures to charge complained of. Had the court been requested to charge on the omitted topics, we may assume that the omissions would have been supplied. When counsel want every detail of the law applicable to the facts of the case gone over by the court, they should make their desire known and call attention to these minute matters. Unless they so do, the court may instruct in general terms on broad and controlling principles, and there stop.

5. Eor two reasons we are blind to.any error there may have been in rejecting evidence of a conversation between common debtors and one of the attaching creditors. "We are not advised of the import of the conversation, and the record does not show that Brown, the mortgagee, was present, but clearly intimates the contrary. As a general rule, a person is not to be affected by what is said about his rights behind his back.

The court was correct in refusing a new trial.

Judgment affirmed.