Baker & Swain v. Massengale , 83 Ga. 137 ( 1889 )

Bleckley, Chief Justice.

1. Money being in court for distribution, the pro-' ceeds of Armstrong’s property, it was claimed by Massengale under a landlord’s lien transferred to him by Johnson, the lien being given for supplies to make a crop. It was also claimed by other parties.—a part of it under a judgment older than the lien, and a part on mortgages younger than the lien. The writing purporting to create the landlord’s lien was attested by a subscribing witness who was not produced or otherwise accounted for, except that Aiunstrong, the maker óf the lien, testified the witness was not in the county, and that he knew not where he was. What Massengale knew on the subject did not appear, nor did it appear that any diligence whatever had been used to find the witness or procure his testimony. The court admitted the evidence of Armstrong to prove the execution of the writing. This, we think, was error. The lien was not incidentally, but directly in issue. This being so, the subscribing witness should have been produced or adequately accounted for. 1 Green-leaf Ev. §§557, 569; Code, §3887; Barron v. Walker, 80 Ga. 121. As to proper diligence to procure the evidence of the subscribing witness, see 1 Greenleaf Ev. §572; and that absence from the county does not put the witness beyond the jurisdiction of the court, see Harris v. Cannon, 6 Ga. 389. For the purpose of taking evidence the superior court of any county has jurisdiction throughout the State. The writing being improperly admitted in evidence, the whole trial was vitiated.

2. We however rule upon one element of the charge to the jury, the import of which and of our opinion upou it will appear from the reporter’s statement and the second head-note. We say nothing as to whether Massengale had a landlord’s lien or not, but leave the whole question open for a second trial;

Judgment reversed.