Suttle v. Calwell

34 Ga. 551

• Court: Supreme Court of Georgia
• Decided: June 15, 1866
• Status: Published

Opinion

Lumpkin, C. J.

Mr. Clarke, attorney of the defendants, by written brief, objects to the sufficiency of the record. He complains that all of the returns made to the Ordinary are not sent up by the clerk to this Court. After inspecting the record, this objection does not appear to be well taken. It may be an oversight in us, but if attorneys choose to avail themselves of the privilege granted by the Legislature of appearing by brief alone, they must take the consequences. A diminution of the record should be suggested at the proper time, and in the manner prescribed by the rules of Court, and if well taken, a mandamus should be moved for against the proper officer to have the deficiency supplied. It would seem from the certificate of the clerk of the Superior Court that he transmitted to this Court all the papers in his office, applicable to this case. And if there be a return made to the Ordinary which has not been filed, as a part of the evidence, in his office, it is not the fault of the clerk.

We have carefully inspected the calculation submitted to us, and if the returns are correct and complete, the verdict of the j ury is undoubtedly wrong. They show a balance due the plaintiffs of between one and two hundred dollars.

But is this the measure of the plaintiffs’ rights? We think not. The principle of law is not disputed, that if the parent of the ward has property to support his child, her estate can not he taken for this purpose. •

It is in evidence from the testimony of Mrs. and Mr. Dickens, the daughter and son-in-law of Leroy Griffin, that the father not only had property sufficient, but that he provided well for the maintenance of his children. This being his situation, the evidence shows that property to the amount of $10,600, ■ was transferred to Thomas Griffin, his son and the guardian of Mrs. Suttle; and we infer from the testimony,. that this transaction was not Iona fide, but was made to save the property from some threatened liability growing out of the securityship, or to cover it up in some other way.

Will a Court, under these circumstances, allow the guardian thus to strip the common father of the means of maintaining and educating his daughter, and to appropriate the whole of the small estate left her by her uncle Mobley, for this purpose ?

There may be something in this case not apparent from the proof; indeed, this would be inferable from the verdict of the jury and the refusal of the Court to grant a new trial.

But the record and evidence as sent up to us, leads somewhat to a different conclusion: and, judging by this alone, we are constrained to grant a new trial.