Carr v. Lee

44 Ga. 376

• Court: Supreme Court of Georgia
• Decided: July 15, 1871
• Status: Published

Opinion

Warner, Judge.

This was a bill filed praying an injunction on the following statement of facts : In March, 1868, Lee, executor of Henderson, obtained a judgment against Carr, the complainant, for $3,500 00, on which an execution issued, was levied on Carr’s property, and advertised for sale by the sheriff on the first Tuesday of November, 1871; that, on the 4th October, 1871, Ruth Henderson, a judgment creditor of Lee, whose judgment was obtained 29th March, 1871, sued out a summons of garnishment against Carr, requiring him to answer at the Superior Court of Rockdale county, on the second Monday in March, 1872, what he was indebted to Lee. The Court refused the injunction, and the complainant excepted. If Carr’s property had been sold as advertised on the first 'Tuesday in November, 1871, and had satisfied Lee’s judgment against him, then he would not have owed him anything, and could have so answered the summons of garnishment in March, 1872, but if the sale of his property did not satisfy Lee’s judgment, then he could answer what amount he then owed Lee after deducting the amount for which his property levied on had been sold, so that there would have been no difficulty in protecting himself from having to pay the debt twice, as the summons of garnishment did not require him to answer until March, 1872, and Lee’s judgment, being of older date than the service of the summons of garnishment, would have protected him as against Ruth Henderson’s garnishment as to the amount of the sale of his property. Let the judgment of the Court below, refusing the injunction, be affirmed. There can be no question as to the right of sureties to plead the pardon of their principal in answer to and defense of their contract with the State, to produce him to answer an alleged offense. This legal proposition is abundantly sustained by authority. It would work the grossest injustice if it were held otherwise. The accused is under arrest, by the State, for an offense against the criminal law; he is surrendered to his securities, upon their entering into a bond and binding themselves for his appearance at the Court to answer the charge made. If the State pardons the principal and blots out the offense, there is nothing for him to answer; and it would be the grossest injustice to bind the security, when the means of compelling his attendance had been annulled.

Lochrane, Chief Justice, and McCay, Judge, concurred for different reasons, but wrote no opinions.