Blood v. Martin , 21 Ga. 127 ( 1857 )

By the Court.

Benning, J.

delivering the opinion.

In this case there were exceptions taken on both sides.

On the side of the defendants, Martin excepted. He excepted both to the granting of the rule nisi, and to the granting of the rule absolute.

He says that, no foundation of evidence was laid for the rule nisi to rest on. He says that, no evidence of any sort had been laid before the Court on the question whether he had violated the injunction or not, at the time when the rule nisi was granted. This is his ground of exception to the granting of the rule nisi.

It is not clear that this ground is true in point of fact. All the evidence on the subject is what is contained in the recital to the rule nisi and in these words of the recital: “ It being represented to the Court,” &c.

A representation may be under oath. Therefore it is not a necessary inference from these words, that the representation to which it refers, ivas not under oath.

Slight evidence is sufficient to justify a judgment nisi.

There might have been, if there was not, strong evidence presented to the Court, to justify this judgment nisi; for in the further progress of the case, it was shown that Martin had violated the injunction.

It is to be presumed therefore, we think, that the Court had before it sufficient evidence to authorize it to grant the rule nisi. Every presumption is to be made in favor of the judgment of a Court that has jurisdiction.

But if it be true, that the injunction had in fact been violated by Martin, it can be a matter of little or no practical importance, whether proof that it had been violated was presented to the Court or not, at the time when the Court granted the rule nisi.

Is it true, then, that the injunction had been violated?

The injunction was, that Martin should abstain from selling the property that had been seized under his attachments. Á command to him to abstain, was a command to him to abstain not only by himself, but also by his agents.

The attaching officer was his agent, so far as to be bound to abstain from selling the attached property, if instructed to do so by him.

It appears from the answer of Martin himself, and also from oilier evidence, that the attaching officer sold a part of the attaclied property, that Martin was present at the sale; that he and the attaching officer were seen to consult together; that he did not direct the officer to abstain from selling the property; but said publicly, that he would have nothing to do with the matter; that the officer knew his duty.

Under such circumstances, the act of the officer in selling a part of the property, must be considered as the act of him, Martin. And if so, the act was a breach of the injunction. We think it was a breach of the injunction.

If Martin had told the officer not to sell the property, and the officer, disregarding the instruction, had of his own willfulness sold the property, the case might have been different.

So much for the exceptions on the side of the defendant

Blood, the plaintiff, complains, that the judgment rendered by the Court against Martin, for violating the injunction, gave him, Blood, no redress. And, secondly, that the order of the Court dissolving the injunction, to some extent, was improper.

As to the first ground of complaint, we hardly think that the Court intended its judgment rendered for the violation of the injunction, to receive the construction which the counsel of Blood put upon it, viz.: a construction by which the sum of $130, which the judgment exacts of Martin, was to be paid to the State as afine, rather than to the receiver of the property levied on, to stand in the place of the property from the sale of which, it had been raised. For -unless the Court had intended the money to take the place of the property, it is difficult to conceive why the Court should have set the .sum to be paid by Martin, at $130, the precise sum raised from the sale of the property.

We merely say, therefore, in relation to this judgment, that it ought to be put in such a form, as not to leave it doubtful' whether the money raised by the sale of the property, was to take the place of the property. We think it ought to be made to take the place of the property, and to he held by the receiver as the property would have been held.

As to the judgment dissolving the injunction. The attachments were levied on certain property that belonged to the partnership of E. Johnson & Co., and also on certain property that was the separate property of Johnson. The injunction commanded Martin to abstain from selling any of the attached property. The judgment was that so much of the injunction as restrained Martin from selling the separate property of'• Johnson, be dissolved.

And a dissolution of the injunction to this extent was manifestly right. Blood’s mere partnership with Johnson could give him no rights by which he could prevent the sep arate creditors of Johnson from proceeding against Johnson, and Johnson’s separate property.

Judgment modified.