Pope v. United States Fidelity & Guaranty Co.

35 S.E.2d 899, 200 Ga. 69, 1945 Ga. LEXIS 389

• Court: Supreme Court of Georgia
• Decided: September 7, 1945
• Docket: 15226.
• Status: Published

Opinions

Duckworth, Justice.

(After stating the foregoing facts.) The testimony upon which the defendants rely as making an issue for the jury as to whether or not the entry of levy by the sheriff was entered on the execution docket No. 22, page 371, and a cross-reference made on the execution docket No. 19, page 335, before May 36, 1941, at which time the judgment here involved would become dormant, has not been set forth in the foregoing statement of facts, for the reason that in our opinion it is immaterial to a consideration of the question of dormancy. There is no dispute that the dockets contained the entries hereinbefore set forth. These books are in their essence public records. The clerk is under a duty to keep them and to record such entries therein. Code, § 34-3714 (5). In making such entries with the dates shown, he is presumed as a public officer to faithfully and accurately perform the duties devolving upon him by law. See Grannis v. Irvin, 39 Ga. 22; Bedgood v. McLain, 94 Ga. 283 (2) (21 S. E. 529); Greer v. Ferguson, 104 Ga. 552 (30 S. E. 943); Durrence v. Northern Nat. Bank, 117 Ga. 385, 388 (43 S. E. 726); Connolly v. Atlantic Contracting Co., 120 Ga. 213 (2) (47 S. E. 575); Davis v. Baldwin, 185 Ga. 40, 41 (193 S. E. 892); Hogg v. Rome, 189 Ga. 298, 302 (6 S. E. 2d, 48). Being public records, these dockets are to be taken as speaking the truth and as justifying an examiner to rely on their contents, as otherwise he might be.misled to.his injury and damage. Since they show the entries in respect to, the levy by the sheriff to have been made on May 33, 1941, when introduced in evidence they must be accepted as containing entries made át a time when'the judgment-had ii'tftb become dormant, and not as containing entries made after the date' which appears on the docket. We think that these exéciitióír • dockets come within the rule stated in 20 Am. Jur. 1017, § 1164,'' that “what ought to be of record must be proved by the record.' The- record cannot be contradicted or enlarged by parol- -evidence.' The necessary presumption arising from a record cannot be contradicted by parol evidence any more than the express words of' the record itself.” The rule is stated in 53 C. J. 622; §' 37: “Every public record is presumed to be correct, and cannot be collaterally attacked. Ah investigator may rely on the truth - bf specific recitals contained in a public record; and one relying upon public records is protected not only by the natural equities of his position, but also by the special equities arising from the protection afforded every one who relies upon the records. It will also be presumed that the recording officer properly discharged his duty with regard to the making of the record, and that the record -was made from the original document.” Compare Albritton v. Tygart, 134 Ga. 485 (68 S. E. 79); Swift v. Swift, 191 Ga. 129 (11 S. E. 2d, 660); Schermerhorn v. National Fire Ins. Co., 38 Ga. App. 470 (144 S. E. 395); Brinson v. Georgia Railroad Bank &c. Co., 45 Ga. App. 459 (165 S. E. 321).

It does not follow, however, that, if in fact an entry be falsely-made in a public record, it must always remain so. “There are certain limitations upon the doctrine that parol evidence is inadmissible to vary or contradict a record. In direct attaclcs upon these records, in the nature of equitable proceedings, evidence has been held admissible to impeach the record.” 20 Am. Jur. 1019, § 1166. (Italics ours.) In the present ease, the testimony üpoh which the defendants rely as raising a jury question and preventing the direction of a verdict was not offered under any special pleadings for the purpose of amending or altering the execution dockets upon proof of entries fraudulently or wrongfully made, but apparently was offered only to contradict generally the written record. Hence, as to such testimony we are not required to1 do more than to rule, as we do here, that this parol' evidence under the state of the pleadings is without probative value as against the clear and unambiguous written evidence shown by- the execution dockéts, and that to impeach these public records-it would’ be first necessary to seek such relief by appropriate and timely special pleadings making a direct attack thereon, to which proceeding . the clerk of the superior court, as the keeper of the records, should be made a party defendant by the defendant in execution, C. F. Pope, now a party to the present equitable proceeding. No such attack having been made, the parol evidence can not be considered, and the only competent evidence on the question of the entry of the levy by the sheriff is that manifested by the execution dockets themselves. Since the facts- shown by these public records are the same as those which this court held, as the law of the case, in Pope v. United States Fidelity & Guaranty Co., 198 Ga. 304, constitute a substantial compliance with the Code, § 110-1001, relating to dormancy of a judgment, it necessarily follows that the judgment in question had not become dormant, and that, as against the claims of Mrs. Pope and the intervenors, the court did not err in directing a verdict in favor of the petitioner.

The motion for continuance, although stating as one of the grounds that the defendant Pope, without whom counsel asserted that he could not safely go to trial, was in the army of the United States and entitled to a suspension of the case, was, properly construed, not a motion to stay the proceedings under the' Soldiers’ and Sailors’ Civil Relief Act of 1940 (50 U. S. C. A., § 531) for the period of his service and sixty days thereafter, but was an ordinary motion to continue the case to another term. Counsel for the defendants so treat it. A motion for continuance is addressed to the sound discretion of the trial judge, and his judgment will not be disturbed unless it appears that there has been a manifest abuse of that discretion. Leathers v. Leathers, 132 Ga. 211 (63 S. E. 1118); Hilton v. Haynes, 147 Ga. 725 (2) (95 S. E. 220); Fordham v. State, 148 Ga. 758 (2) (98 S. E. 267). The affidavit as to the defendant Pope being in a government hospital and requiring hospitalization until about November 15, 1944, or about three weeks after the case was called for trial, does not conclusively appear to have been made by an attending physician, and even if so made does not state that his condition was such as not to permit his attending court in Dublin. There was no evidence showing that a request for absence from the hospital had been made and refused, or that a leave would not have been-granted if requested, and there was no evidence from which it could be said that the judge abused his discretion in refusing to grant a continuance.

It appearing from the evidence that the exceptions pendente lite to the order directing payment of counsel fees, receiver’s fees, taxes, and court costs on account were not filed until January 11, 1945, and that the payments had in fact been made on December 21, 1944, the question raised as to the invalidity thereof is now moot, aside from any consideration whether or not the objection is to a final judgment, and whether or not necessary parties were made in the bill of exceptions, and, accordingly, no decision is necessary.

Judgment affirmed.

All the Justices concur.