Saunders v. Smith , 3 Ga. 121 ( 1847 )

By the Court.

Warner, J.

delivering the opinion.

There was a motion made in the Court below to set aside the decree made in this cause by the Superior Court of Decatur County, in June 1838, on several grounds.

First, Because the defendant was not liable to be sued, or [1.] recovery had against him, by the defendant in error as administrator de honis non.

The answer to this objection is, that the decree of which the plaintiff in error complains, was rendered long anterior to the organization of this Court; and if we were to take upon ourselves the task to correct all the errors which might be supposed to exist in the various judgments and decrees rendered in the several superior Courts, prior to the organization of this Court, there would be no end to litigation, and nobody’s rights would be considered settled by such judgments and decrees, made by courts of competent jurisdiction and the final arbiters of the rights of parties in this State at the time when made.

Although we may be of the opinion there was error in that decree, yet, having been made before the organization of this Court, we do not consider it would be proper now to correct or interfere with it.

[2.] The second ground of error alleged, is, that the decree was rendered against the defendant in his individual capacity, and not against the assets in his hands as executoi’.

This suit was not instituted on a contract made by the defendant’s testator, but was a bill filed against him to account for the trust funds which had come into his hands, and which he is charged to have wasted; and we think the decree was properly rendered against him individually, as was ruled by this Court, in Bryant Guardian &c. vs. Owen & Wife, 1 Kelly R. 368.

[3.] The third ground of error is, that the decree does not recite the allegations of the bill and answer, or the proofs submitted on the trial, &c., as required by the English chancery practice.

Under the authority given to the judges of the Superior Courts in convention, to establish uniform rules of practice, by the act of 1821, the 13th equity rule declares, “ When a case in equity shall be tried by a jury, who shall render a verdict for a specific sum, a decree shall be entered for such a sum, and such execution may be issued thereon as if the case had been decided at common law” — Hotchkiss 955. As equity causes are tried by a jury in this State, and the evidence is not confined to depositions taken in writing, as in England, it has never been the practice of our courts to recite the" evidence in the decree. Besides, the bill and answer are required to be recorded, together with all the proceedings in the cause, including the decree; and the evidence on the trial must necessarily be confined to the particular matter controverted by the replication, as provided by the 5th Equity Rule of practice. No good reason therefore occurs to us, why the practice which has heretofore prevailed in this State, should be disturbed, and the English practice adopted.

The fourth ground of error is, that the recovery exceeds the amount sued for and the finding of the jury, and the decree is not authorized by the allegations in the bill.

We think there is as little foundation for this ground of error, as for several others which have been taken, from an inspection of the record. The original verdict was for $8221 22, the copy established is for $8221 20 — two cents less than the original verdict — but this .was subsequently amended by an order of the Court for that purpose.

It appears from the record that a ca. sa. issued against the [4.] defendant on the verdict of the jury, and a motion was made to set it aside, on the ground, that a decree in equity cannot be enforced against the person of a defendant by a ca. sa., as at common law. We think the 13th Equity Rule of practice before cited, settles this question. That rule declares “ such execution may be issued on the verdict, as if the case had been decided at common law.” . .

A motion was also made to set the ca. sa. aside on the ground [5.] it did not correspond in date or amount, with the record of the decree, and because it was made returnable on the third Monday in December, 1838, when the Court was held on the second Monday in December, 1838.

The Court ordered the ca. sa. to be amended in both particulars, which is also assigned for error.

We are of the opinion the Court below did not err in its judgment, in permitting the amendment. See Shaw vs. Maxwell, 6 T. R. 450; Evans vs. Rogers, 1 Kelly R. 467, and cases there cited. We do not intend to be understood as saying, that where a vested right may have been acquired by thirdpersons under process, such process may be amended so as to defeat or prejudice such rights. To induce this Court to interfere with the discretion of [6.] the Court below, in allowing or refusing amendments of process, there must be, in our judgment, a flagrant abuse of such discretion, which, to our minds, does not by any means exist in this case.

It also appears, that the original papers in this case had [7.] been lost or destroyed, and a motion was made to establish them under the 20th rule -of practice. Hotchkiss, 949. This rule declares, “ Upon the loss of any original declaration, plea, bill of indictment, or other office papers, a copy of the same shall be established instanter.”

The objections urged are, that the adverse party had no notice of the order to establish the lost papers, and that there was no proof submitted to the Court below, that the copy sought to be established was a true copy, &c.

We are of the opinion, that notice, to establish office papers which are lost or destroyed, under the rule, is not indispensably necessary j it is the business, as well as the duty of the court, to guard and protect the rights of both parties in the keeping and establishment of its own records — nor can we presume that the Court below did not have satisfactory evidence before it of the loss of the office papers, and that the copies sought to be established were true copies of the lost originals, before it passed the order to establish the same. It however appears from the order itself, that it was an exemplification of the original lost record, that the Gourt ordered to be established, which afforded the most satisfactory evidence of its authenticity.

The judgment of this Court is, that there is no error in the record, and that the judgment of the Court below be affirmed.

Judgment affirmed.