Armstrong v. Lewis , 61 Ga. 680 ( 1878 )

Bleckley, Justice.

1. For the indorser to be discharged by reason of the dismissal of the creditor’s suit, under the circumstances detailed in the record, the act of dismissal must have been by the creditor himself, or by the court at his instance, and this must appear by evidence. If the creditor was not at fault in the matter, and the court, either without a motion, or on motion of the adverse party, dismissed the case, the indorser was not discharged.

2. As to evidence that the suit was dismissed, there can be no doubt that the only primary evidence is an entry on the proper docket, or on the minutes of the court. If an •entry ought to have been made, but was omitted, it may yet be made nimepro timo. Thus made, it will relate back to the time when the actual dismissal took place; but until the appropriate entry is supplied, the suit must be regarded as still pending, no disposition of it by other means appearing.

3. The superior court being a court of record, its dockets, minutes and records must be kept so as to represent the true state of its business. It is not meet that the court should be dependent upon a trial by jury to ascertain what cases are pending and what are not pending. Trial by inspection, not by jury, is the method appointed by law for the solution of such a question. In a direct proceeding for the purpose, the court can and should make its books of every kind speak the truth, and, on sufficient- evidence aliimde, may correct them when they fail to do so. When they all litter the same voice, they import verity; and neither for alleged errors nor alleged deficiencies can they be attacked collaterally. An error or deficiency may be shown in a direct proceeding to correct or supply it, but in no other; nor even in that without competent evidence.

4. If there was a dismissal by the creditor, or by his procurement, after a writ of error had been disposed of and the remittitur sent down, but before the latter was entered in the superior court, he cannot escape the consequences of the dismissal by reason of the mere fact that the remitt/iimr had not been entered. On its being entered afterwards, the dismissal would take effect, granting that its effect would be suspended until that time. The creditor’s voluntary action in the matter, even if premature, would be operative against himself, though it might not prejudice others. His continued acquiescence in what he had done, would be equivalent to a repetition of it after the remittitur was entered. He should be considered as standing by his action because it represented his present will as well as his past will.

5. Under our system, the pleadings in a case are amendable, whether at law or in equity, without stint, if there is anything to amend by. If a party makes a mistake in his answer, - he may correct it by filing an amended answer. The entire answer is then to be read together, and while one part of it may be credited by a jury and another part discredited, the document is to be considered as one instrument, and the several parts of it may be looked to as explaining and correcting each other. The complainant, though he has waived discovery, may read from the answers such admissions therein as may suit his purpose, but when he has done so, the defendant may read such other parts of the same answer as bear directly on the subject matter of the admissions. 59 Ga., 25 (6). Whether the right result'has been reached or not, we will not venture to say. There has been no proper trial'.

Judgment reversed.