Conley v. Key

25 S.E. 914, 98 Ga. 115

• Court: Supreme Court of Georgia
• Decided: January 20, 1896
• Status: Published

Opinion

Atkinson, Justice.

The official report states the facts.

The petition upon which the attachment nisi as for a contempt was issued, was sworn to by the plaintiff in error as the agent of the wife. To meet the charge of contempt, it was necessary for the defendant in that proceeding to answer on oath, and it was perfectly competent to support his answer, either by the testimony of witnesses verifying its truth, or by proving to the satisfaction of the court that the person filing the information was so utterly unworthy of credit, as that an information supported only by his affidavit was to all intents and purposes not sworn to at all. For the purpose of that inquiry, the plaintiff in error was a witness to the extent that his affidavit was the basis of the accusation, and testified against the defendant; and this rendered legitimate the production of impeaching affidavits. Affidavits made in a judicial proceeding pertinent to the issue are held to be privileged, notwithstanding they may have been made maliciously. See Francis et al. v. Wood et al., 75 Ga. 648. If a witness who makes an affidavit which is pertinent and legal is excused upon the ground of privilege, certainly the attorney who presents it for the consideration of the court cannot be held to have abused his privilege. To rule such a doctrine, would be to practically deprive a party of the benefit of counsel in every case in which it became necessary or proper to impeach a witness of his adversary. We therefore conclude that the court committed no error, and that the judgment sustaining the demurrer to the plaintiff’s declaration be Affirmed.