Sharman v. Morton , 31 Ga. 34 ( 1860 )

By the Court.

Lyon, J.,

delivering the opinion.

1. This was a suit upon a judgment from the Circuit Court of Alabama. To this suit, the defendant plead infancy at the time of the making of the note; that he did not make the note, and that he was not a partner of the firm of James Sharman & Co., and had no interest in the note which was the subject of that suit. The Court held that these pleas were not proper replies to that action, and we concur with the Court in such ruling. Section I, of the 4th Article of the Constitution of the United States,, provides, that “Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State, and that Congress may, by general laws, prescribe the manner in which such Acts, records, and judicial proceedings shall be proved, and the effect thereof.” And Congress, by an Act of 24th May, 1790 (Cobb, 275), having provided for the manner of authentication of such judicial proceedings, and so authenticated, that they “Shall have such faith and credit given to them in every Court within the United States, as they have by law or usage in the Courts of the State from whence the said records are or shall be taken.”

2. The record of this judgment, having been authenticated according to’ the Act of Congress, the judgment was as conclusive against the defendant in the Courts of this State, as it would have been in the State of Alabama. If the defendant had notice of that suit, he was concluded as to all questions made by these pleas. Mills vs. Duryee, 7 Cranch, 481. Hampton vs. McConnell, 3 Whea. 234.

3. The defendant was at liberty to plead any special plea that would have avoided the judgment, such as that he had no notice of the suit, or that it was obtained fraudulently— Hunnivay vs. Stillman. 4 Cow. Rep. 292 — and so the Court below held—

4. The fact, “That the witness was an attorney for the plaintiff, in the suit in Alabama, in which the judgment was obtained, did not render him incompetent to testify in the cause, and he testified to no fact that he acquired from his client, or during the existence and by reason of the relation of client and attorney.”

5. The newly discovered: evidence, on which the defendant asked for a new trial, was very strong. Baker, the witness by whom the facts are expected to be proved, states in his affidavit, that he was employed as an attorney by James Sharman, the other partner, to file the plea of infancy for this defendant to the suit in Alabama, and that he did file that plea to- that suit. That he never saw this defendant, or conversed with him on the subject; that this defendant was not at the Court at which the case was tried, in Alabama, That the plea of infancy, filed by him, would have defeated the suit as to this defendant, but for a compromise, made by James Sharman with the plaintiff, “to give him indulgence.” If this is true, and the plea was withdrawn, in consequence of the agreement of the plaintiff, to indulge James Sharman, to which this defendant ¡was not a party, this is such a fraud on the defendant as will vitiate that judgment as to him. The judgment was not that of the Court, but of the plaintiff and James Sharman, or rather by their consent. This testimony serves another purpose; that is, to repel or rather explain the presumption arising from this clause of McCoy’s answer. “Finally, it was agreed by plaintiff’s counsel and the defendants, that a verdict of the jury should be taken against them, with a stay of the execution of twelve months.” Baker’s testimony shows that Clement B. Sharman was no party to such agreement, although McCoy’s language might have and possibly did create a different impression. Thé expression, whether accidentally or from design, was rather equivocal.

6. We are rather inclined to the opinion that the verdict is against the weight of the evidence any way. Doubtful, as it was, we think this evidence would have completely turned the scale, had it been in.

7. The only doubt about this ground is, whether the evidence was newly discovered. If the Court below had any doubt on this subject, 'the rule nisi for a new trial ought at least to have been allowed, so as to give the party time to file the additional affidavit.

• 8. But, we think, the new trial ought to have been granted. The statement of counsel, in his plea, was very strong; this, .■and the statement of the witness in the affidavit, that he had •not communicated these facts to this defendant previously, •were sufficient to warrant the Court in the conclusion that the '■evidence was newly discovered; so á new trial must be granted ion this ground.

9. There is one other point, which I omitted to notice in the proper place, and that was the motion to continue, on account of the absence of Mr. Hill, one of the counsel, and the leading counsel, too, of defendant, from the Court, in attendance on the Legislature, as a member thereof. We think, the Court properly overruled the motion. This was not a ground of continuance. Counsel, who have engaged to- perform services for a client, to- prosecute or defend' his suit, mus^ not assume new duties and relations inconsistent with the duty growing out of such engagement, and should he do so, the client must get new counsel, or do without him; his absence in attendance upon his new duties will not work a continuance of the cause; such has not been the practice of the Courts within our knowledge.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed, upon the ground that the Court erred in refusing the motion for a new •trial. The Court should have granted a new trial on account of the newly-discovered evidence.