Hendrick v. Tompkins

14 Ga. 86

• Court: Supreme Court of Georgia
• Decided: August 15, 1853
• Docket: No. 14
• Status: Published

Opinion

By the Court.

Starnes, J.

delivering the opinion.

[1.] At October Term, 1852, of Hoard Superior Court— to which the plaintiff in error, as former Sheriff, had been required to answer, by a rule taken against him, and after due consideration of his return, the rule was made absolute, by order and judgment of the Court. By consent of the plaintiff’s counsel, ex gratia, and as a matter of complete justice, before a formal order or entry of judgment, leave was given to Hendrick to amend his return, or rather to make an alias return, on condition that he would serve the plaintiff’s attorney with a copy thereof, on or before the first of March thereafter; and the record was kept open, that this might be done. At the next term, no such alias return having been, in the meantime, made and served, as required by the order, Hendrick, by his counsel, moved to amend; and that he should be allowed to go again into the merits of the issue which had been at the last term considered and adjudged by the Court. This was refused by the Court; and, in our opinion, properly. Hendrick had had his day in Court, with regard to the subject-matter which he proposed to investigate; and that had been considered and determined. He was afterwards entitled only to be’heard upon the terms prescribed in the order. Not having complied with those terms, he was not rectus in curia; and the Court propefly overruled Iris motions.

It was proper, too, for the Court to grant the order, nunc pro tunc ; and the objection urged to it, viz: that there was no record on which such order could be based, is not tenable.

The record consisted of the previous orders and return of the Sheriff.

The case, at the last term, stood precisely where it did when at the first term the Court suspended its judgment, and granted a further order on terms — inasmuch as there had been no compliance with those terms' — and the Court had the same power and authority in the premises, which it had when the extended order was granted. The order, nunc pro tune, therefore, making the rule absolute, was properly granted.