Swatts v. Spence

68 Ga. 496

• Court: Supreme Court of Georgia
• Decided: February 15, 1882
• Status: Published

Opinion

Jackson, Chief Justice.

A motion was made to dismiss the writ of error on two grounds, first, that the acknowledgment of service and the filing of the bill of exceptions in the office of the clerk of the superior court were not in time, and, secondly, that the other defendants to the bill, it being to marshal assets and in which all were interested, were not served.

1. There is no date to the-certificate of the judge, and it will be presumed, under the act of 1881, to have been made on the day .of acknowledgment of service, which is the 10th of December, 1881, and was filed in the clerk’s office on the 17th, which is in time.

2. Under the ruling in 62 Ga., 135, the other defendants to the bill need not have notice, but may, by amendment, be made co-plaintiffs ; therefore the writ of error will not be dismissed, but the amendment will be allowed, and the co-defendants be made co-plaintiffs in this bill of exceptions.

3. On the denial of the motion for a new trial we see no substantial error. The amendment to the bill, though not made by order or leave of the court, but before the injunction was granted, and not objected to on the application therefor, is no ground sufficient to set aside the verdict. No motion was made to continue, nor was defendant to the bill hurt thereby otherwise.

4. The entries on the execution docket by the clerk, made in presence of defendant and by his order, were admitted properly to go to the jury with the oral evidence thereon.

5. The question before the jury was whether the execution of plaintiff against decedent had been satisfied by the land sold him by decedent, and that turned on the other question whether he got or could get the lot actually sold, though another was conveyed in the deed to him, which the bill alleged was inserted in the deed by mistake. To correct the mistake, equity will require that the other party be put where he should have been put by the deed when reformed.

Therefore there was no error in the charge that the jury might find that the administrator should make a deed to number 5, or the equivalent thereof, if they should find that the conveyance to number 4 was inserted by mistake. It was equity, favorable too to the defendant below, the plaintiff in error here, and to which he could not object.

6. The evidence is sufficient to show clearly that the wrong lot was inserted in the deed, and that it should be reformed if equity could thereby at the same time be done to the other party. The decree requires that to be done by the administrator making him a deed to the other lot, proved to be of equal value, and if that has been already sold as his property by the sheriff, and applied to his debts — judgments against him — it has' already gone to his benefit, and he cannot complain.

The charge of the judge pro hac vice gives the law of the case and the equities between the party complaining here and the administrator clearly and accurately, the verdict of the jury is sustained by the evidence, and the decree thereon, so far as this plaintiff in error is concerned, follows it, and the judgment overruling the motion for a new trial must be affirmed.

Judgment affirmed.