Chastain & Luck v. Robinson , 30 Ga. 55 ( 1860 )

By the Court

Lyon, J.,

delivering the opinion.

1. For what purpose the evidence of the constable, William Taylor, and that of the Justice of the Peace, Osborn J. Taylor, in relation to the proceedings of the Justices’ Court of Lumpkin county, on a question that “sprung up” in that Court, in relation to the legality of the levy on the bay mare, was offered, we are unable to see. The evidence was inadmissible for any purpose that we can imagine. If it was offered to explain a levy on they?, fas., it was inadmissible for any such purpose, as a disposition of a levy made in that way was illegal, and amounted to none at all. But on looking carefully to they?, fas. themselves, or the copies thereof attached to the record, we see no levy but such as is sufficiently accounted for or disposed of, to enable the plaintiffs in fi. fas. to proceed with their collection against any other property of defendant that may be subject to them.

The main defense relied on by claimant to defeat the lien of the executions on the lot of land levied and claimed, so far as- we can judge from the record and position of counsel taken in the argument, is, that the entry on the executions of “No property” of the dates of 15th February, 1850, and 14th December, 1855, were not the entries of the constable, whose name is signed thereto, nor made at the time they bear date, but were ma'de by one James Cantrell, who was claimed to be the owner of them, after they?, fas. had become dormant, etc., and that the entries were thereforefraudulent and void, and the executions, in fact, dormant. If these facts are true, the conclusion must be: to prove the facts, claimant offers the testimony of Wesley W. Shropshire, who testifies, that the entries of those dates are in the hand-writing of James Cantrell, and this fact is also proved by the constable himself, who says that Cantrell did make the entries for him and at his request, and, he thinks, at the dates thereof. Shropshire testifies, further, that he was in Milledgevilleon the 14th December, 1855, and that Cantrell was there as a Senator in the Legislature from the county of Lumpkin. We do not understand the witness to say that Cantrell was himself in Milledgeville on that day, and made the entry then.

If Cantrell had an interest in these executions — if they were proceeding for his benefit, then it was to his interest tó have these entries made and dated back; that is, if they had become dormant for the want of such entries; and the circumstances connected with the interview, as testified to by Mr. Shropshire, might have created a very strong presumption against the bona fides of these entries, that would very justly have operated materially on the minds of the jury in passing on this question. On the contrary, if Cantrell had no interest in the ji. fas., there was no motive to him to fabricate a false and fraudulent entry on the same, in order to give vitality to them, which they did not otherwise have. It was, therefore, important to show that Cantrell had an interest in these executions. For that purpose, claimant proposed to prove by the witness, Shropshire, a conversation between witness and Cantrell, in relation to the execution that occurred in Milledgeville, in the winter of 1855, and what Cantrell then said to the witness about his ownership of, and interest in, the executions; who had them, and for what purpose, etc. Counsel for plaintiffs in execution objected to this evidence and the Court overruled the objection, and the witness was allowed to testify to the conversation, to what Cantrell said, etc.

2. In this the Court committed error. The executions were proceeding in the name of Chastain and Luck, for the use of C. and W. J. Peeples. They were the parties in interest before the Court to be affected by the judgment of the Court; and there was nothing before the Court except the statements of Cantrell, showing that the executions did not belong exclusively to the plaintiffs therein. They were not present when Cantrell made the statements complained of nor did they in any other manner assent thereto. Cantrells admissions, declarations or statements could not affect the rights of these plaintiffs. They could only affect himself, and until it was shown to the Court, by other evidence, that the fi. fas., did not belong to the plaintiffs, but to Cantrell, the evidence ought to have been excluded.

3. At the date of 14th December, 1855, and during that entire winter, these executions were not dormant, even if no entry had, in fact, been made since that of 20th June, 1849, which is not questioned. That fact was an important one to be considered by the jury, with all others, as to the bona fides of the two contested entries. For if, at the conversation with Shropshire, the fi. fas. were not then dormant in the absence of the two entries of 1850 and 1855, and they could not have been if the entry of 20th June, 1849, is a genuine one. There was no particular necessity, at that time, to antedate or fabricate a return or entry of no property on the fi. fas. Hence, the Court ought to have charged the jury on the request of counsel, that they might consider this as circumstance showing the bona fides of the entries.

Judgment reversed.