Duncans in Houston Co. GA Court Records part 1

Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug
Last revised March 25, 2004

HOUSTON CO. GA
COURT RECORDS part 1

"Reports of cases in law and equity, argued and determined in the Supreme Court of the state of Georgia; from Hawkinsville term to Milledgeville term, 1849" ("Georgia Reports") Vol.7, by James M. Kelly and Thos. R.R. Cobb, pgs.283 to 296, Decatur, August term 1849 (California State Law Library, Sacramento, 12/2003; MAD's extract)
      JOHN KILLEN, ex'r of JAMES H. KILLEN, plaintiff in error, vs. SAMUEL H. SISTRUNK and Wife, defendants; No. 54, Supreme Court of Georgia; 7 Ga. 283; August, 1849, Decided.
      In Equity, in Houston Superior Court. Motion for a new trial. Decided April Term, 1849.
      On the 13th April, 1836, James H. Killen died testate, appointing John Killen his executor. By his will, after making provision for his wife, he desired that all the remainder of his property, real and personal, be sold by his executor, on some day after the 1st January, 1837, as he might deem best. The terms, one fifth cash, and the remainder in four annual instalments, with interest from the sale, so that one-fourth should fall due on 1st January of each year, till all was paid. The interest on the instalments to be paid annually. By a subsequent item, he desired, that after the collection of the amounts for which his property sold, his executor should lend out the money, before the courthouse door in the town of Perry, on the first Monday in January, at or to the highest bidder, for one year next succeeding the letting out. The testator divided his whole estate between his four children, on their marriage or arrival at age, respectively. John Killen qualified as executor, and sold the property, as pointed out by the will, on 8th January, 1836. In 1844, Samuel H.J. Sistrunk, who married one of the daughters and legatees, and his wife, filed their bill against John Killen, for an account. Among other things, the bill charged that John Killen, as executor, did lend out the money of the estate, at public outcry, at an average rate of interest per annum of 32 per cent.; that by renewals and private loans, he continued to keep the money of the estate at large usurious interest, from the date of the sale till the years 1843; that the executor had purchased negroes with the money of the estate, and afterwards sold them at large profits; that the returns of the executor were ambiguous, incomplete and untrue. The bill contained other allegations of improper conduct, not necessary to the proper understanding of this case.
      The answer admitted that the executor did lend out the money of the estate once at public outcry, and afterwards kept it out at the best interest he could get, but from the great hazard attending the public letting, he felt it his duty to abandon it. The defendant admitted that he had received, in usurious interest upon the money of the estate, $5,825, and that the whole amount of lawful and usurious interest received by him amounted to $12,624.75. The answer stated, that from the unsettled and embarrassed state of the people, during a part of the time, it was unsafe for him to lend out the money, and that large amounts were thus unemployed on his hands. The answer stated, that the returns of the executor were correct, and those returns embraced all the interest, lawful and usurious, collected by defendant; that in spite of his efforts to the contrary, he had sustained losses, mostly from purchasers at the sale subsequently becoming insolvent, to the amount of $ 3,600. The answer denied the purchase and sale of negroes, on speculation, with the money of the estate; averred the inability of defendant to state the amount or rate of interest received by him on each loan, but admitted that it varied from 8 to 30 per cent.
      Upon the trial, complainant proved by William Holoman, that he borrowed $150 of John Killen, at 16 per cent. -- renewed once at 20 per cent. James E. Duncan borrowed $5,000, in February, 1847, at 10 per cent. Silas Rawls proved that the average interest, at the public letting, was from 25 to 27 per cent. which letting took place in 1838 or 1839. C.J. Staley borrowed 5 or $600, at 20 per cent. -- renewed annually for 4 or five years. "At each renewal defendant always proposed to renew at what others paid him." Charles H. Rice testified, that twenty per cent. might be considered as an average rate paid in Houston county, during the years from 1837 to 1846. He was one of the purchasers at the sale of the money, and gave 18 or 20 per cent. Other testimony was before the Jury, on other points not necessary to be referred to.
      The Jury returned a verdict for complainant for $4,521.25. Among the papers returned by the Jury, was a paper under the certificate of the Clerk of the Court of Ordinary, setting forth all the debits and charges against the defendant, without any of his credits or disbursements. This paper was not in evidence, nor offered in evidence. (MAD: calculation of amounts and further statements not copied here)
      (part of opinion) Our determination is, therefore, to remand this cause, with the following instructions to wit: 1. That it be referred to auditors, to be appointed by the Court, who shall hear testimony and report upon the case, and which report, when sanctioned by the verdict of the Jury, shall be final and conclusive, either party being at liberty to controvert any matter of law or fact contained therein, before said Jury. 2. That the auditors, in ascertaining the amount in the hands of the executor, charge him with the various, sums which he has received from time to with eight per cent. interest thereon, compounded annually -- first deducting therefrom the current expenses of each year; and in addition thereto, the usury admitted by the defendant in his answer to have been received by him, with eight per cent. interest thereon, from the time when his answer was filed--unless it can be shown by sufficient testimony, that he has collected, and ought to be made chargeable with a larger amount. 3 That the fact that several witnesses testify, that they paid to the executor a certain rate of interest on loans, and that he stated that this was his customary charge, and that it was the rate of interest usually paid in that part of the country, at the period when these transactions took place; and that the executor sold money at public outcry, as directed by the will of the testator, at from 8 to 27 per cent. prem. does not necessarily controvert the answer of the defendant as to the amount of interest actually collected by him. 4. The auditors will direct their attention, particularly, to the various items in the returns of the executor alleged to have been paid out to the heirs of Joseph Cutts, deceased, and find which of these are legitimate credits in his favor, and which not.

"Reports of cases in law and equity, argued and determined in the Supreme Court of the state of Georgia; commencing July 1847" ("Georgia Reports") Vol.3, by James M. Kelly, pgs.274 to 277, Decatur, August term 1847 (California State Law Library, Sacramento, 12/2003; MAD's extract)
      LEROY M. WILEY, PARISH & CO., plaintiffs in error, vs. C. & G.H. KELSEY & HALSTED, defendants in error. CLARK & PELOT, plaintiffs in error vs. C. & G.H. KELSEY & HALSTED, defendants; No. 43; Supreme Court of Georgia, at Decatur; 3 Ga. 274; August, 1847, Decided.
      Dormant Judgment Act. In Houston Superior Court. April Term, 1847.
      (opinion) The plaintiffs in error, Leroy M. Wiley, Parish & Co., and Clark & Pelot, obtained judgment respectively at the April Term, 1839, of the Superior Court of Houston county, against the firm of T. & S. Williams. Executions were issued thereon, and placed in the hands of George M. Duncan, Sheriff of the county, and by him levied in August thereafter, on sundry property, real and personal, belonging to the defendants. The following entries then appear upon each of the fi. fas., namely: "First Tuesday in October, 1839. House and lot sold for one thousand dollars to F.B. Thompson, and the stock of goods sold from month to month until the first Tuesday in January, 1840, for $(blank) (Signed,) GEORGE M. DUNCAN, Sheriff. The money arising from the sale of the above, was applied to the payment of executions against the defendants, according to their respective dates and amounts;" which gave to one of the fi. fas. $184, and to the other $182. There is a slight discrepancy in the testimony of George M. Duncan, respecting the date of this last entry. In one case he swears positively that it was made by him in April, 1840, when the money which he raised was distributed by order of the Court. In the other he states, that owing to the treachery of his memory, he cannot say positively whether it was made at that time or not.
      At October Term, 1846, of the Superior Court of Houston county, money was brought into Court, arising from the sale of Thomas Williams' property, upon a fi. fa. in favour of C. & G. H. Kelsey & Halstead, against T. & S. Williams. These old executions, or rather copies, which were issued in lieu of the originals under an order of the Court, were put in to claim this fund. The creditor who raised it, resisted them and tendered an issue, suggesting payment. The whole matter was continued until April, 1847, at which time this issue was withdrawn, and the right of Leroy M. Wiley, Parish & Co. and Clark & Pelot contested, upon the ground that they were barred by the Dormant Judgment Act -- more than seven years having intervened since the date of the last entry by the Sheriff, upon their fi. fas. The Court below sustained the objection, and this decision being execepted to, it becomes our duty to review it.
      The statute referred to is in these words, i.e.: "All judgments that have been obtained since the 19th day of December, 1822, and all judgments that may be hereafter rendered in any of the courts of this State, on which no execution shall be sued out, or which executions if sued out, no return shall be made by the proper officer for executing and returning the same, within seven years from the date of the judgment, shall be void and of no effect; provided, that nothing in this Act contained shall prevent the plaintiff or plaintiffs in such judgments from renewing the same after the expiration of the said seven years, in cases where by law he or they would be otherwise entitled so to do, but the lien of such revived judgments on the property of the defendants thereto, shall operate only from the time of such revival." Prince 458.
      It is not worth while on the present occasion to discuss the policy of this law. This was fully done in a former opinion delivered by this Court in February last, at Macon. I shall content myself with considering whether or not this case comes within its provisions.
      If the last entry of the Sheriff, accounting for the final distribution of the money raised by him in 1839-40, was made at April Court, 1840, as he distinctly avers to be true in Clark & Pelot's case, why then there is an end of the controversy; for the final disposition of the fund last raised, in April, 1847 was just seven years from that date. And in case of doubt upon a matter of fact like this, it would have been proper to have referred it as an issue of fact, to have been found by a jury.
      But set aside this return altogether, for uncertainty or any other cause, and how stands the case? I assume it to be incontrovertibly true, that the return next preceding this, must have been made on or before the first Tuesday in January, 1840. It carries internal conviction upon the face of it; for it recites that the stock of goods were sold from month to month, to that period. Moreover, it is clear that the statement by the Sheriff as to the proportion of the money which fell to such fi. fa. from the amount of sales could not have been made until after the conclusion of the sale in January, 1840. Taking this date, then, as a starting point, seven years had not elapsed up to October, 1846, when the fund in dispute was brought into Court, and claimed under the old executions. And they continued to assert their right to it up to the decision in April thereafter. It is true that the issue of payment tendered by the Kelseys and Halstead in October, 1846, was withdrawn by them at the ensuing term, and that in the mean time the seven years had intervened. But the abandonment of this issue by them was no abandonment of their lien by Wiley, Parish & Co., and Clark & Pelot. They were men out of Court. We do not decide, for it is not necessary, that an execution being sub judice, will stop the running of the statute -- whether, for instance, if it had been hung up for more than seven years upon a claim, or for a length of time sufficient for the statute to attach, and the property should be found not subject, it would be a good bar to arrest any future action upon the fi. fa. until renewed. By analogy to the plea of the statute of limitations to actions upon notes and other instruments, it would be. And yet this case would certainly not come within the reason and spirit of the act passed to prevent a fraudulent enforcement of dormant judgments. Even vigilant creditors and innocent purchasers could scarcely complain that the process of the Court had slumbered until it had become an instrument of fraud, when it was all the while in Court, busily enforcing its rights.
      I repeat, however, that it is not necessary to express an opinion upon this point. It never was supposed that if suit was commenced upon an instrument before the limitation attached, that it could be arrested during its pendency and progress; and it would be necessary to go this far to justify the rejection of those old fi. fas. If the seven years had not run in October, 1846, when they applied through the Courts for this money, it surely did not after that time, as the plaintiffs never discontinued their claim, but were maintaining their right constantly up to the final adjudication against them.
      We do not see, therefore, that we can do otherwise than reverse the judgment below as to the statutory bar.
      This case holds that the execution was not barred under the dormant judgment act. When the case was up again (9 Ga. 117), it was held that the judgment rendered in 1846 establishing the alias fi. fa. was conclusive as to the facts which it purported to decide until reversed or set aside, and that it could not be collaterally attacked. It was held in the same case (10 Ga. 371) that said judgment might be directly attacked for fraud and collusion upon the direct issue made and tendered for that purpose. Wiley, Parish & Co v. Kelsey, 13 Ga. 223. No fraud was shown to have been practiced in this case by the judgment of 1846, establishing the alias fi. fa and the entries thereon. Id. 237. ... Claimant of the costs by the plaintiff and a receipt of the Sheriff for the fi. fa. was held sufficient to prevent dormancy of the judgment.

"Reports of cases in law and equity, argued and determined in the Supreme Court of the state of Georgia; from Decatur term 1850 to Milledgeville term May, 1851" ("Georgia Reports") Vol.9, by Thos. R.R. Cobb, pgs.117 to 120, Decatur, August term 1850 (California State Law Library, Sacramento, 12/2003; MAD's extract)
      L. M. WILEY, PARISH & Co., plaintiffs in error, vs. C. &. G. H. KELSEY and HALSTED and others, defendants; No. 25; Supreme Court of Georgia; 9 Ga. 117; August, 1850, Decided.
      Rule against Sheriff, and motion to set aside fi. fa. in Houston Superior Court. Decided by Judge STARK, April Term, 1850.
      At the April Term, 1839, of Houston Superior Court, L. M. Wiley, Parish & Co., obtained judgment against T. & S. Williams, for the sum of $1,753.96 cents, principal. Execution issued therefor on the 18th day of May, 1839.
      The correct amount was inserted in the face of the execution, but on the back it was for $753.96 -- the same entry was made on the execution docket. The only entry which appeared upon the execution, was a receipt, in the handwriting of the late Judge Tracy, for $186.46 cents -- but not signed by him -- dated January 25th, 1840.
      At the October Term, 1846, and on the 28th day of the month, an order was obtained, which recited that it appeared to the Court, by the statement of plaintiff's counsel and an inspection of the record, that the original fi. fa. had been issued by the Clerk, through mistake, for $753.96 cents, instead of $1,753.96 cents, and ordering that the said fi. fa. so erroneously issued, be cancelled and annulled, and a new one for the correct amount be issued; and, also, directing the late Sheriff, George M. Duncan, to enter upon the new fi. fa. any levy or payment which may have been made upon the old one; and accordingly, upon said fi. fa. George M. Duncan made several entries, the last of which was made sometime about the 1st of January, 1840.
      At the October Term, 1846, of said Court, a controversy arose as to the distribution of certain money arising from the sale of T. & S. Williams' property, between the plaintiffs in this fi. fa. and other judgment creditors of T. & S. Williams, when an issue of payment was made, and tendered upon the fi. fa. of Wiley, Parish & Co., at the instance of C. & G. H. Kelsey and Halsted, which was, at the April Term, 1847, withdrawn, and at said term, on motion of counsel, the fi. fa. of Wiley, Parish & Co. was set aside, on the ground that it was dormant, and the money then in the hands of the Sheriff ordered to be paid to the fi. fa. of C. & G. H. Kesley and Halsted. To which decision exception was taken, and the same was reversed by the Supreme Court; and, subsequently, money was paid upon said fi. fa. by order of the Superior Court, had at October Term, 1848.
      At the April Term, 1850, of Houston Superior Court, a rule was moved against the Sheriff to pay over money arising from the sale of T. & S. Williams' property, to the fi. fa. in favor of Wiley, Parish & Co., when counsel for defendants in error moved the Court to set aside said fi. fa. upon the following grounds ...
      (opinion) The facts of this case are briefly as follows: At the October Term of Houston Superior Court, in the year 1846, it was ordered and adjudged by the Court, upon the evidence of the plaintiffs' counsel, and an inspection of the record, that the Clerk had issued an execution upon a judgment rendered in favor of L. M. Wiley, Parish & Co. vs. T. & S. Williams, through mistake, for the sum of $753.95, instead of the sum of $1,753.95; and it was farther ordered and adjudged by the Court, that the execution so erroneously issued, be, and the same is, hereby cancelled and annulled, and that the Clerk forthwith issue a fi. fa. for the correct amount of the judgment, nunc pro tunc; and, also, that the late Sheriff, George M. Duncan, do enter upon said fi. fa. so to be issued, any levy or payment which may have been made or received upon the execution erroneously issued as aforesaid.
      The execution so issued in accordance with the judgment of the Court, has claimed money in the Court below, and has once been before this Court, when it was adjudged not to have been a dormant execution.
      At the last term of the Court, the execution established by the judgment of the Court, as before stated, was placed in the Sheriff's hands, to claim money arising from the sale of the defendant's property, when a motion was made to set it aside, upon the ground that an execution, alleged to have been the original execution, was produced in Court, which had been issued for the correct amount, and was dormant under the law, and the Court sustained the motion, and set aside the fi. fa. so issued in accordance with the judgment of the Court, made at October Term, 1846. The only question involved is, whether the judgment of the Court, rendered in October, 1846, can be attacked and set aside in this collateral manner.
      The only effect of the evidence offered is, to show that the Court was mistaken as to the facts when the judgment was rendered in 1846, and that the judgment was erroneous. In other words, the evidence now offered expressly contradicts the judgment rendered in 1846. The judgment rendered in 1846 declares, that the execution issued for the wrong amount. The evidence now offered is for the purpose of showing that there was no mistake, and that the execution was originally issued for the correct amount, and to prove that fact, a paper is offered which is said to be the original execution.
      Admit the paper offered in the evidence to be the original execution, and what effect can it have as evidence? The judgment of the Court, in 1846, declares it to be cancelled and annulled; and so long as that judgment remains unreversed, it is difficult to perceive upon what legal principle it can be contradicted, and especially how it can be contradicted by offering a paper in evidence, which, by the judgment of a Court of competent jurisdiction, has been adjudged to have been cancelled and annulled.
      Although the judgment may have been erroneous, yet it is conclusive as to the facts which it purports to decide -- it being the act of a Court having competent jurisdiction over the subject-matter -- it cannot be contradicted or attacked, in the manner proposed in the Court below. Stark vs. Woodward, 1 Nott & McCord's Rep. 329. Lyles vs. Brown, Harper's Law Rep. 31. Geyer vs. Aguilar, 7 Term. Rep. 681, 691. Simms & Wise vs. Slacum, 3 Cranch 300. 1 Cond. Rep. U.S. 541. We are of the opinion that the Court below erred in its judgment, in allowing the judgment rendered in 1846, establishing the execution, to be impeached, collaterally, by the evidence offered for that purpose.
      Let the judgment of the Court below be reversed.

"Reports of cases in law and equity, argued and determined in the Supreme Court of the state of Georgia; from Hawkinsville term to Milledgeville term November, 1851" ("Georgia Reports") Vol.10, by Thos. R.R. Cobb, pgs.371 to 384, Decatur, August term 1851 (California State Law Library, Sacramento, 12/2003; MAD's extract)
      C. and G. H. KELSEY & HALSTEAD and others, plaintiffs in error, vs. L. M. WILEY, PARISH & CO., defendants in error; No. 52, Supreme Court of Georgia; 10 Ga. 371; August, 1851, Decided.
      Motion, in Houston Superior Court. At the April Term, 1839, of Houston Superior Court, L. M. Wiley, Parish & Co., obtained judgment against T. & S. Williams, for the sum of $1,793.96 cts., principal. Execution issued therefor, on the 18th day of May, 1839. The correct amount was inserted in the face of the execution, but on the back of it was for $753.96; the same entry was made on the execution docket. The only entry which appeared upon the execution, was a receipt in the handwriting of the late Judge Tracy, for $186.46 cts., but not signed by him, dated January 25th, 1850.
      At the October Term, 1846, and on the 28th day of the month, an order was obtained, which recited, that it appeared to the Court, by the statement of the plaintiff's counsel and on inspection of the record, that the original fi. fa. had been issued by the Clerk, through mistake, for $753.96 cts., instead of $1,753.96 cts., and ordering that the said fi. fa. so erroneously issued, be cancelled and annulled, and a new one for the correct amount be issued; and also directing the late Sheriff, George M. Duncan, to enter upon the new fi. fa. any levy or payment which may have been made upon the old one; and accordingly, upon said fi. fa., George M. Duncan made several entries, the last of which was made sometime about the 1st of January, 1850.
      At the October Term, 1846, of said Court, a controversy arose as to the distribution of certain money arising from the sale of T. & S. Williams' property, between the plaintiffs in this fi. fa. and other judgment creditors of T. & S. Williams, when an issue of payment was made and tendered upon the fi. fa. of Wiley, Parish & Co., at the instance of C. & G. H. Kelsey & Halstead, which was at the April Term, 1847, withdrawn, and at said term, on motion of counsel, the fi. fa. of Wiley, Parish & Co., was set aside, on the ground that it was dormant, and the money then in the hands of the Sheriff, ordered to be paid to the fi. fa. of C. & G. H. Kelsey & Halstead. To which decision exception was taken, and the same was reversed by the Supreme Court, and subsequently money was paid upon said fi. fa. by order of the Superior Court, had at October Term, 1848.
      At the April Term, 1850, of Houston Superior Court, a rule was moved against the Sheriff, to pay over the money in his hands to the fi. fa. of Wiley, Parish & Co., when counsel for C. & G. H. Kelsey & Halstead, moved to set aside said fi. fa. upon the following grounds: 1st. Because said fi. fa. bears date the 28th October, 1846, more than seven years after the signing of the judgment from which it issued; that it is attested by Angus M. D. King, as Judge, who was not at that time Judge, and signed by Lewis J. Jordan, as Clerk, who was not at that time Clerk. 2d. Because said fi. fa. is not an alias fi. fa., and contains entries prior to its date; the original fi. fa. having been by order of Court set aside, cancelled and annulled by order of this Court. 3d. Because the judgment from which said fi. fa. purports to have issued, was dormant -- said fi. fa. not having issued within seven years from the time of signing said judgment. 4th. Because the judgment from which said fi. fa. was issued is and was dormant before the said fi. fa. was issued -- the original fi. fa. issued therefrom not having any entry made thereon by the proper officer, for more than seven years from the time it was issued; and farther, because the original fi. fa. was not erroneously issued, but was correctly issued, and that the said original was dormant, and the said established fi. fa. was erroneously established, and contained entries which were not on the original fi. fa., and said entries were erroneously placed on the said established fi. fa.
      Which motion the Court sustained, and ordered the fi. fa. of Wiley, Parish & Co. to be set aside as absolutely null and void, and the money in the hands of Sheriff to be paid to the fi. fa. in favor of C. & G. H. Kelsey & Halstead, and other judgment creditors, according to priority.
      To this decision exception was taken, and the same was reversed by the Supreme Court, August Term, 1850, at Decatur.
      At April Term, 1851, of Houston Superior Court, counsel for Wiley, Parish & Co. moved a rule nisi against the Sheriff, to pay over the money in his hands to the fi. fa. in their favor, when counsel for C. & G. H. Kelsey & Halstead; Stoddard, Miller & Co.; Hamilton, Houston & Co.; Wright, Murphree and John Martin, judgment creditors of T. & S. Williams, made out and tendered an issue upon the said rule, and moved the Court to set aside the fi. fa., and the order and judgment of the Court passed at the October Term, 1846, authorizing said fi. fa. to be issued and cancelled, and annulled the original fi. fa. which was issued from the judgment between the said parties, at the April Term, 1839, upon the grounds,
      1st. Because said order and judgment was fraudulently obtained; the said G. H. Kelsey & Halstead, and other judgment creditors of T. H. Williams, were not parties to said order and judgment, and the Court was fraudulently deceived and induced to pass said order and judgment by false representations by the parties thereto; that the original fi. fa. which was issued from the judgment between the parties in 1839, was issued by mistake, for $753.96 cts., instead of $1,753.96 cts. principal, called for by said judgment, and also said original fi. fa. contained entries by the proper officer, whereby it was saved from the operation of the Dormant Judgment Act; and that the same, together with the judgment from which it issued, was not dormant; when, in fact, said original fi. fa. was correctly issued for the sum of $1,753.96 cts., and the said original fi. fa. did not contain entries by the proper officer, as required by the Dormant Judgment Act, and the same, together with the judgment from which it issued, was dormant at that time. By means of which fraudulent and false representations and pretences, said Court was deceived and induced to pass said judgment, prejudicial to the rights of said C. & G. H. Kelsey & Halstead and others.
      2d. Because the parties plaintiff and defendant to the judgment passed in 1846, in fraud of the rights of Kelsey & Halstead and others, colluded together for the defendants to consent that said order should be passed by the Court, knowing that said original fi. fa. was correctly issued, and did not contain entries by the proper officer, but was dormant, and that said junior creditors were entitled to a legal preference.
      3d. Because the Court had no jurisdiction or authority to pass said order and judgment, requiring and authorizing the late Sheriff, George W. Duncan, who was there and then out of office, to enter upon said fi. fa. so to be issued, any levy or payments which may have been made or received upon said fi. fa. so fraudulently and falsely represented as having been erroneously issued; and that the said Duncan did falsely and fraudulently enter upon said fi. fa. levies and payments which were not upon the said original fi. fa.
      4th. Because the original judgment between the parties, obtained in 1839, was dormant under the Act in such cases made and provided, at the time said order of 1846 was passed, and therefore, said order was improperly granted, and in fraud of the rights of said junior judgment creditors, who were not, and could not be heard upon its passage on the trial of the issue, which, by agreement of counsel, was submitted to the Court. Counsel for C. & G. H. Kelsey & Halstead and others, offered to introduce evidence in support of the several grounds taken in their motion, which was objected to by counsel for Wiley, Parish & Co. The Court sustained the objection and rejected the evidence, upon the ground that the question made had been adjudicated by the Supreme Court at Decatur, August Term, 1850.
      Whereupon counsel for Kelseys & Halstead and others, excepted.
      (opinion) The main question made in this case is, whether the Court below erred in directing that the points made at the last term of that Court, for its decision and judgment were the same which had been made before it at a previous term, and brought before this Court on a writ of error, in the case of Wiley, Parish & Co. vs. Kelsey & Halstead et al., 9 Ga. 117. The Court below was of the opinion, that the questions made at the last term of that Court, were evidentially the same as those adjudicated by this Court between the same parties, in the case above referred to, and so ruled -- holding that that Court, to use its own language, was "in vinculis" with regard to the questions then made before it by the plaintiffs in error. To determine this question, we must examine the facts, as the same appeared in the record before us at Decatur, August Term, 1850, and as the same appear in the record now before us. The facts of the case, as the same appeared in the record before us on the former occasion were, that at the October Term of Houston Superior Court, in the year 1846, a judgment was rendered by that Court, in which it was "ordered and adjudged by the Court, upon the evidence of the plaintiff's counsel and an inspection of the record, that the Clerk had issued an execution upon a judgment rendered in favor of L. M. Wiley, Parish & Co. vs. T. & S. Williams, through mistake, for the sum of $753.95, instead of the sum of $1,753.95; and it is further ordered and adjudged by the Court, that the execution so erroneously issued be, and the same is hereby cancelled and annulled, and that the Clerk forthwith issue a fi. fa. for the correct amount of the judgment, nunc pro tunc; and also, that the late Sheriff, George M. Duncan, do enter upon said fi. fa. so to be issued, any levy or payment which may have been made or received upon the execution erroneously issued, as aforesaid." In pursuance of this judgment of the Court, it appeared that the new fi. fa. issued, and that George M. Duncan, the then late Sheriff, made several entries thereon, which had previously been made on the fi. fa. erroneously issued, so as to make the entries on the new fi. fa. correspond with those made on the fi. fa., which had been issued through mistake for the wrong amount, the last of which is dated January, 1840. It also appeared, that this new fi. fa. had been proceeding to collect money out of the defendants for some years after it had issued, and had once been before this Court, when it was held not to have been a dormant fi. fa.
      This judgment of the Court upon which this new fi. fa. was based, remained in full force, unreversed and unimpeached, when at April Term, 1850, of Houston Superior Court, a motion was made to set aside this new fi. fa. issued under the authority of that judgment, upon the following grounds: "1st. Because said fi. fa. bears date the 28th day of October, 1846, more than seven years after the signing of the judgment from which it issued; that it is attested by Angus M. D. King, as Judge, who was not at that time Judge, and signed by J. Jordan, as Clerk, who was not at that time Clerk of this Court." ... (MAD: more not included here)
      The Court below appears to have been impressed with the idea, that that Court in 1846 had no jurisdiction to adjudicate the question in regard to the entries directed to be made by the then late Sheriff, George M. Duncan on the new fi. fa., directed to be issued by the judgment rendered in 1846. The Superior Court is a Court of general jurisdiction, and the rule is, as stated by this Court in Grier vs. McLendon, (7 Ga. 362, 364,) that nothing shall be intended to be out of the jurisdiction of a Superior Court of general jurisdiction, but that which specially appears to be so. Had not the Superior Court in 1846, jurisdiction of the subject-matter of the judgment? Most clearly so, in our judgment. What is the fair and reasonable interpretation to be given to that judgment, according to the rule above stated, in respect to the entries directed to be made on the new fi. fa.? The Court by its judgment, ordered a new fi. fa. to issue in the place of an old one which had been issued for the wrong amount, nunc pro tunc, and also directed, "that the late Sheriff, George M. Duncan, do enter upon said fi. fa. so to be issued, any levy or payment which may have been made or received upon the execution, erroneously issued as aforesaid." Now, we are bound to presume that the Court in 1846, did not act in reference to the questions then before it, without evidence; but on the contrary, we are bound to presume in favor of the judgment, that there was evidence before the Court that there were entries made on the old fi. fa. by George M. Duncan, the then late Sheriff; and for the purposes of having the same entries made on the new fi. fa. which were made on the old one, the testimony of George M. Duncan was resorted to, for the purpose of ascertaining the true state of the facts, inasmuch as the law requires Sheriffs to keep an execution docket. We are bound to presume, in support of the judgment, that the Court was satisfied, from the evidence before it, that entries had been made on the old fi. fa. by the then late Sheriff, George M. Duncan, because the Court orders the same entries to be made on the new fi. fa., not by George M. Duncan as Sheriff at that time, but for him to make just such entries on the new fi. fa. as he had made on the old one, while he was Sheriff, nunc pro tunc; the Court first being satisfied from the evidence before it, that the entries ordered to be made by Duncan, were the proper entries, ascertained by reference to his execution docket, or to his entries on the original fi. fa. That we cannot presume that the Superior Court in 1846, awarded a judgment in reference to the entries to be made on the new fi. fa. without satisfactory evidence before it, we think is very clear. It having been established, then, to the satisfaction of the Court in 1846, (as we are bound to presume,) that there had been levies and other entries made on the original fi. fa. previous to that time, by George M. Duncan, while acting as Sheriff, the Court orders that the same entries shall be made by him on the new fi. fa. then ordered to be issued, as had been made by him while Sheriff, on the old fi. fa. nunc pro tunc. The entries on the new fi. fa. derive all their legal force and effect from the judgment of the Court, ordering the new fi. fa. to be issued -- not from the fact that George M. Duncan, the late Sheriff, made the entries thereon in 1846; for he was only the instrument, acting under the authority of the Court. If the Court had selected any other individual to have made the entries on the new fi. fa. which had been proved to have been made on the old cue by George M. Duncan, as Sheriff, while acting in that capacity, the entries would have been of equal validity. The fair and reasonable presumption in favor of the action of the Court in 1846 then, is, that George M. Duncan, having been Sheriff at the time the entries were made on the old fi. fa., he was called as a witness to prove what those entries were, either from his execution docket, or from the old fi. fa. as it then appeared in the Court, or from his best recollection; and the Court being satisfied with his evidence in regard to that point, ordered him to make the same entries on the new fi. fa. as had been made by him on the old one, nunc pro tunc. The Superior Court, in 1846, not only had jurisdiction of the question then before it, but we are bound to presume, and do presume, that it exercised its jurisdiction in awarding the judgment in relation to the new fi. fa., and the entries thereon, upon sufficient evidence to have authorized that judgment; and until it shall be reversed, or impeached for fraud, it is conclusive as to the subject-matter which it purports to decide.
      Let the judgment of the Court below be reversed.

Go to part 2 of the Houston Co. GA Court Records

END

Return to the Houston Co. GA Research File

Return to Index to Duncan Research Files in Georgia

Return to The Genealogy Bug's Home Page

HOUSTON CO. GA COURT RECORDS part 1

HOUSTON CO. GA
COURT RECORDS part 1