Cheatham v. Morrison , 37 S.C. 187 ( 1892 )

The opinion of the court was delivered by

Mr. Justice Pore.

This action was tried before his honor, Judge Norton, and a jury, at the October term, 1890, of the Court of Common Pleas for Abbeville County. On a verdict for the plaintiff, judgment was duly entered. Thereupon the defendants appealed. The facts of the controversy that occurred up to 1889 are fully set forth in the judgment of this court, in the case of Cheatham v. Morrison and Maddox, 31 S. C., 326. The result of that case was that the plaintiff was remitted in the court below' to his rights in the subject matter of this controversy, and to have the same enforced, as provided in sections 2398 and 2399 of the General Statutes of this State. Accordingly we fiud in the “Case” that the plaintiff here gave notice to M. M. Seawright and also to the defendants, Morrison and Maddox, that he would apply to the Court of Common Pleas for Abbeville County for an order requiring said Seawright to turn over to the sheriff of such county the property replevied by him in the proceedings set on foot in 1885 by the plaintiff to enforce his statutory lien for rent, by virtue of Seawright’s bond, to which Morrison and Maddox were sureties, or in case said property could not be produced, then for judgment for the value thereof. Under these proceedings judgment was recovered against Seawright for $412.91, before Judge Izlar, 12 June, 1890. The sheriff made return of nulla bona. No property was turned over. Thereupon this action was brought against Maddox and Morrison. The trial, as before stated, resulted in a judgment for the plaintiff against them identical, except interest from 12 June, 1890, to date of verdict was added, with that against Seawright.

We will now examine the grounds of appeal, eight in number originally, now only seven, as appellants have abandoned their first ground of appeal.

1 “2. Because his honor erred in allowing plaintiff to introduce the record purporting to be a final order or judgment in the case of J. H. Cheatham v. M. M. Seawright, when the testimony showed that Seawright for years past had been a non-resident of this State, that no order for publication to serve said Seawright was made, nor was appearance or answer made by said Seawright.” The statements of the “Case” relating to Seawright’s residence at the time of the issue against him in June, 1890, seem to be these: He was a citizen of Abbeville County, in this State, in 1884, and in the year 1885, when plaintiff began proceedings to enforce his statutory lien for rent on crops raised by Seawright in Abbeville County during the year last named, and when the replevin bond was given, Seawright, under hand and seal, stated his residence as “near Donaldsville, Abbeville County, in this State.” Thus it will be seen that when the proceedings were begun to enforce the lien, he acknowledged his residence in Abbeville County, in this State.

Mr. G-reenleaf, at section 41 of his work on Evidence, states the rule in these words: “When, therefore, the existence of a person, a personal relation, or a state of things, is once established by proof, the law presumes that the person, relation, or state of things, continues to exist as before, until'the contrary is shown, or until a different presumption is raised, from the nature of the subject in question.” There is no testimony in the “Case,” that Seawright was residing in the State of Georgia at the time judgment wa§ obtained against him. There is such allegation in the answer. The utmost point to which the testimony goes in this direction is that Seawright was served with a notice while at some place in the State of Georgia, and that he wrote a letter from that point. It will be seen, therefore, that there has not been established in this case any permanent change of residence of Seawright. But, besides, Seawright voluntarily made himself a party to these proceedings when he signed the notice to the sheriff and when he entered into the replevin bond; not only so, but by the express language of such bond, he thereby undertook, and bound himself to the plaintiff in the sum of $500, “for the delivery of the property to the plaintiff, if. such delivery shall be adjudged, and for the payment of such sum as in this action for any cause be recovered against the defendant.” Upon these considerations, without considering the effect of the judgment itself, we are obliged to overrule this ground of appeal.

2 “3. Because his honor erred in refusing to grant the motion for a non-suit, when the testimony showed that there had not been a statement prepared by J. H. Cheatham after the-commencement of the special proceeding to seize the-crops mentioned in the testimony.” In the “Case” here it appears that the record of the judgment of plaintiff against Seawright, the principal in the replevin bond to the sheriff, was introduced by the plaintiff. By the ground of appeal here to be considered, appellant insists that such record disclosed the absence of any formal statement of the amount due by the said Seawright under the statutory lien for rent. Can a judgment record that is responsive to the issues necessarily involved, be contradicted by proof of what was or was not tried! This court has held that it cannot be done. Trimmier v. Thomson, 19 S. C., 247. The statement referred to by appellant relates, to the amount due for rent by the lienor, Seawright, to the lienee, Cheatham, and was an issue necessarily involved in the judgment. This ground of appeal must be dismissed.

“4. Because his honor erred in refusing to grant the motion for a non-suit, where there was a total failure of the testimony on the part of the plaintiff that there had been a breach of the bond sued upon.” The appellants in their argument very frankly admit that this ground of appeal depends upon the views of this court on the second and third grounds of appeal here. Having held that the judgment iu question was properly admitted, aud that it was conclusive, at least prima facie, of all issues necessarily involved therein, and.to that event being-testimony in the case at bar, of course it follows that there was not a total failure of the testimony. This ground of appeal is, therefore, dismissed.

3 “5. Because his honor erred in ruling that the defendants were not entitled to offer testimony, showing that the amount claimed to be due by Seawright to Cheatham was not for agricultural purposes.” There is an evident misapprehension in the minds of appellants on this point, for the “Case” fails to disclose that the Circuit Judge refused them any privilege in this particular. This is the language of the “Case:” “After his honor refused the motion for a non-suit, defendants’ attorneys asked his honor if his ruling was that the judgment of Judge Izlar was conclusive of the rights of these defendants. His honor ruled that the judgment of Judge Izlar was conclusive of a breach of the bond. Whereupon defendants’attorney announced that he would offer no testimony.” Such being the facts, of course, there was no error such as complained of.

2 “6. Because his honor erred iu allowing plaintiff to offer in evidence the record purporting to be a final order or judgment, unless he had shown that it was made after a statement had been prepared in pursuance of the requirements of law.” Having already held that where the judgment roll shows a judgment responsive to the issues that this court will not recognize the right of a party to show what was or was not lu-oved at that trial, we do not see any necessity to linger over this ground of appeal. We might remark in passing, however, that we do not perceive how the Circuit Judge, as a condition precedent to the introduction of a judgment record that was competent evidence in the case, should insist that any or every element that entered into such cause of action, appeared as an integral part of such record at the time it was offered. The absence of any such integral part of the record might be questioned after its introduction. This ground of appeal is dismissed.

4 “7. Because bis honor erred in charging tbe jury upon tbe facts of the case, wben be charged that tbe plaintiff has shown that tbe condition of the bond bad been broken—that be bad shown this by a judgment of tbe court, which fixed tbe liability of Seawright.” Tbe construction of a written paper is a question of law for the court, and not a question of fact. Pelzer, Rodgers & Co. v. Steadman, 22 S. C., 288. Tbe bond in this case bad to be construed by the Circuit Judge; it was for him to say what tbe condition therein appeared was. Tbe legal effect of a record offered in evidence is also tbe duty of tbe Circuit Judge to declare. Wben tbe decisions of tbe courts of this State declare what constitutes tbe breach of a bond, such is a question of law, and it is not error for tbe Circuit Judge to so state tbe law; it is bis duty to do so. Thomson v. Joplin, 12 S. C., 580. In tbe case at bar, tbe Circuit Judge merely complied with these requirements. This ground of appeal is dismissed.

“8. Because bis honor erred, in commenting upon tbe facts of tbe case, wben be charged tbe jury, that tbe interest was included to make up tbe judgment of Judge Izlar, and we cannot question now whether it was right or wrong; it is conclusive.” From tbe principles hereinbefore announced, it is obvious that there was no mistake made by tbe Circuit Judge; tbe words be used were such as were necessary to give to tbe jury a construction of tbe judgment in question. This ground of appeal is dismissed.

It is tbe judgment of this court, that the judgment of tbe Circuit Court be affirmed.