Justices of the Inferior Court ex rel. Selman v. Selman , 6 Ga. 432 ( 1849 )

By the Court.

Lumpkin, J.

delivering the opinion.

The defendants, among other things, insist that being heretofore twice impleaded for the same cause of action, which suits were dismissed — the judgments rendered for the costs in their favor— were in the nature of judgments as upon a retraxit, and are a complete bar to a subsequent action for the same cause. It is contended, on the other hand, that the doctrine of retraxit, as known to the system of English pleadings, is not of force in this State. "We can see no good reason why it is not.

[1.] A retraxit is the public and voluntary renunciation by the plaintiff, of his suit or cause of action, in open Court; and if this is done, and a judgment is entered up thereon, we think that tho right of action is forever gone. Why should it be otherwise ? Its design is to put an end to litigation — a most desirable object in any country. If the plaintiff not merely fails to prosecute his suit, but goes one step farther, and admits either that he never had any cause of action, or that if he had, he is willing to renounce it, and the defendant signs up judgment thereon, as he is by law entitled to do, the effect is precisely the same as the record of a verdict and general judgment in his favor.

[2.] But we think there has been no retraxit in this case. It is true, the plaintiff has twice dismissed his suit. This, by the law, and the unbroken practice of our Courts since the organization of our Judiciary, he had aright to do, without prejudice, except as to the payment of costs.

Chief Justice Marshall, in Hoffman vs. Porter, (2 Brock. 156,) says the books mention a retraxit — a judgment of non-suit — and a discontinuance ; that a retraxit only is a bar to a new suit, in which the plaintiff openly renounces his action, wherein it differs from a mere dismission by the party. The General Court of Virginia, in Pinner, etc. vs. Edwards, etc. (6 Rand. 674,) draw the distinction between a dismission and wetraxit; the former resulting usually from some obstructions in the progress of the cause, and not being a final disposition of it; whereas, a retraxit is a complete bar, and when done, the plaintiff cannot commence again. In Evans vs. McMahan, (1 Ala. Rep. 45,) the Supreme Court of Alabama sustained the distinction between a dismission and a retraxit. The question arose upon the sufficiency of the plea in bar, alleging, as in this case, a judgment by retraxit, but which substituted the words, “ and dismissed the same,” for “ but from the same altogether withdrew himself.” The form of the plea, as furnished by Ghitty, is in these words: “ The said A B came into the said Court, in his own proper person, and confessed that he would not farther prosecute his said suit against the said C D, but from the same altogether withdrew himself,” &c. 3 Chitty’s Plead. 477. The Court held, and we think very properly, that the words, “ and dismissed the same,” were rendered entirely inoperative by what preceded and followed them, and could not be understood to make the judgment pleaded in that case indecisive •of the rights of the parties, as a judgment of dismissal would be.

But the Act of 1843, (Pamphlet, p. 122,) is conclusive upon this point. To avoid the inconvenience and delay which frequently occurred on account of plaintiffs not being able to dismiss their suits except at regular terms of the Court, it authorizes it to be done during the vacation, on the same terms as if done in open Court, to wit: the payment of the costs, before they could recommence the action.

,[3.] The next question presented by this record, is one of great practical importance, involving as it does the proper construction of the Act of 1812, the second section of which is in these words: “Any executor, executrix, administrator, administratrix or guardian, whose residence shall be changed from one County to another, either by the creation of a new County, removal or otherwise, shall have the privilege of making the annual returns required of them by this Act, to the Court of Ordinary of the County in which they reside, by having previously obtained a copy of all the records concerning the estates for which they are bound as executors, executrix, administrators, administratrix or guardians, and having had the same recorded in the proper office iin the County in which they then reside, and having given new bond and security, as the law directs, for the performance of their duty.” Prince, 241, ’2.

What does this Statute authorize and require to be done, and. what is the legal effect of a compliance with its provisions ? The Act itself being silent as to the mode of its own execution, we deem it our duty to the people and the profession, to express our views briefly upon this subject. They will be considered as directory, at any rate, as to all future proceedings under this Act. We believe that an order ought to be entered on the minutes of the new Court, reciting the fact that the conditions of the Statute had been performed, to wit the record been filed and the security given; that a certified copy of this order should be exhibited to the old Court, and an order passed and placed upon their minutes, exempting the executor, administrator or guardian from his obligation to account farther to them. This done, both records ;are complete — that in the old County is closed up, and that in the new opened. And We are of the opinion, that it operates as an entire transfer of the estate, and that the securities on the first bond are responsible only for past waste, and not for any future mismanagement. The whole trust, we repeat, is removed. All future orders for the sale of property are to be taken in the new County. Letters of dismission are to be granted there. How can they be obtained any where else 1 They are to be issued only upon a full and fair settlement of the accounts of the party applying for them. How can the old Court judge of proceedings which have transpired in another jurisdiction 1 "Whereas, the new Court have the record from the beginning before them. I am aware that the Statute declares, that dismission shall be granted in the County where the letters issued; but this provision does not apply where, by authority of law, the trust has been removed elsewhere.

It is argued that a security is never discharged by implication.In the manner of procedure suggested by this Court, such would not be the fact. The order on the minutes of the old Court, discharging the principal, would operate as a release of his bondsmen. "We will not undertake to say that it cannot be done in any other way. The Act of 1837, (Pamphlet, p. 123, 124, 125,) authorizing the transfer of property in this State, to a non-resident guardian, is very similar in its features to the Act of 1812. Bond and security is to be given abroad, and upon proper proof of that fact, the Court of Ordinary here is required to pass an order, directing a transfer of the funds. This done, and a suitable receipt taken, who doubts that the security for the resident guardian is discharged ? And yet it is by implication of law. It may be said, that in the case put, the assets are not only iemoved out of the State, but that they are placed in other hands; and this is certainly true. The illustration is merely used, to show that a surety may be discharged without a formal judgment for that purpose; and after all, a security residing in Chatham, would be able to exert no more supervision or control over an executor, administrator or guardian who had removed to D ade, or vice versa, than if the State boundary was passed. The Act never contemplated a continuing liability on the part of the old sureties, under such circumstances. Were we constrained thus to expound it, we should not hesitate-to pronounce it unconstitutional. For the objection to a law, on the ground of its impairing the obligation of a contract, does not depend on the extent of the change which the law may make in 'it. Any deviation from its terms, by postponing or accelerating the period of performance which it prescribes, or imposing conditions not expressed in the contract, or dispensing with the performance of those which are, however minute or apparently immaterial in their effect upon the contract of the parties, impairs its obligation, and consequently is within the constitutional prohibition. Smith’s Commentaries, 382. A surety binds himself for the faithful performance of the duty of the trustee, in a particular County, where they both live. To make him amenable for the good conduct of his principal to another jurisdiction, in another and perhaps remote county, would be to change the terms of the contract- — to impair its obligation. Such has never been the practical interpretation of this Act — such, we apprehend, was not the intention of the Legislature.

But another example may be adduced to negative the doctrine that a surety is never discharged by implication. A party dissatisfied with the decision in the Justices’ Court, pays the costs, and obtains a certiorari, having given bond and security for the eventual condemnation money. On the hearing, the judgment below is affirmed, by the Superior Court. The party cast sues out a writ of error, and supersedes the judgment of affirmance by again giving bond and security, as required by law. I ask, is not the surety on the first bond relieved? His undertaking was for the payment of the condemnation money in the Superior Court; and this judgment has been vacated or superseded by the farther appeal of the party, as allowed by law. In principle We see no difference in the two cases.

We agree with the able counsel for the plaintiffs in error, that the mere taking of a neto bond does not, necessarily, release the old sureties, and especially where the new bond is taken by authority of law, for the purpose of strengthening the existing security. If the security on appeals, good at first, becomes insolvent pending the appeal, the party appealing may be compelled to give additional security ; but this does not relieve the old. If A and B are securities for C on his administration bond, and A, becoming dissatisfied, applies to the Court of Ordinary and is discharged, C continuing in his office, giving counter security — it has been ruled, that the discharge of A would not, in such case, release B, the other original security. Whether he will be Jiable for the whole or a moiety only of the bond to which he is a party, is a question about which there is a contrariety of opinion and of decision.

Each transaction of this character must turn, in a good degree, upon the fact of whether or not the second or subsequent bond be given for a new and different undertaking altogether. If so, it does operate, ipso facto, as a discharge of the prior parties.

It only remains to enquire whether or not this case comes within the rule thus laid down ? Has there been either a literal or substantial compliance with the Act of 1812? That Statute clearly contemplates a continuation of the old representation and not the creation of a new one. If there was room to doubt on this point, the amendatory Act of 1843 (Pamphlet, 58,) would settle the matter. It provides, that nothing in the second section of the Act of 1812, shall be so construed as to compel executors who are not bound by the existing laws of this State to do so, to give security upon removing their proceedings from one County to another. All they have to do is, to file an exemplification of the record of their former actings and doings. Others have to give a new bond in substitution of the old, and not for finishing, but for the full administration of the estate, “ as the law directs.”

[4.] Is the present bond, which is the foundation of this suit, taken under the Act of 1812, to continue the already existing guardianship of Mr. Selman, granted to him in the County of Morgaq, as it should have been, or to institute a new, distinct and independent guardianship in the County of Coweta ? If we look to the defence set up in this case, we shall see the construction which the defendants themselves and their counsel put upon the obligation. They refer to it as a separate and original undertaking. If we examine the instrument itself, the same facts stand out in unmistakable features. Not only is there no allusion to the former guardianship — that would have been, perhaps, a fatal omission— but it purports plainly on its face, to be given under, and by virtue of, the new appointment made by the Court in Coweta, and guarantees only the proper discharge of the principal’s duty as such newly appointed guardian. Can it be pretended that this is a compliance with the Act of 1812 ? Is not this whole proceeding void? No new guardianship could be created while the former remained unrevoked. The doctrine of the Common Law in force in this State, and adopted in every part of the Union, is, that when the Court of Ordinary have granted letters to persono entitled and capable of discharging the trust, they have emptied or divested themselves of jurisdiction by the transfer, and cannot resume jurisdiction over the same matter until it reverts to them by the occurrence of some of those events or disabilities which, either for the time or perpetually, vacate the office — as the death of the party, the repeal of his authority, &c. Went. 39. 4 Burns’ Eccl. Law. 3 T. R. 130. Toller, 128. Rose vs. Hunely, 4 Cranch, 244. Wise vs. Withers, 3 Cranch, 331.

In Griffith vs. Thugier, (8 Cranch, 9,) the Supreme Court of the United States (present all the Judges) held, that so long as a qualified executor is capable of exercising the authority with which he is clothed or has been invested, that authority cannot be conferred, by the Court of Ordinary, on any other person; and that if, during such capability by the executor, the Ordinary grant administration, either absolute or temporary, to another person, that grant is totally void.

In the case before us, the validity of the second appointment is not seriously insisted on. It is contended, however, that it is merely an act of supererogation, and that although in itself a nullity, that, nevertheless, the bond in Coweta is good. The misfortune is, that the bond itself is wrong, being taken under the new appointment, and consequently must fall to the ground with it. No suit can be maintained on it. It cannot, therefore, operate as a release of the old securities. But for the fact that the record, or a portion of it, has been filed in Coweta, there is not a particle of connexion between the guardianship in the two Counties.

We regret, extremely, to be driven to this conclusion, but it is irresistible. If it were a case of doubt, for myself, I should unhesitatingly decide for the defendants in error, not because the plaintiffs are strangers to me. My sympathy, I trust, would not in any case control my judgment. But here it is orphan against orphan — the children of Selman, the deceased ancestor, seeking to recover their patrimony out of the children of Sparks, the security of their guardian. But, there being no room to doubt, the law must take its course, whatever ruin it may entail oxx the parties. While we have discarded, in this country, the servile maxim, that the King (Rex) can do no harm, as good citizens it becomes -us, perhaps, to maintain that, lex (the only potentate we acknowledge) non potest peccare.

The judgment below must be reversed and anew trial awarded.