VanDyke v. Besser

35 Ga. 173

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

Opinion

Lumpkin, C. J.

That tiie proceedings in this case are characterized by great uncertainty, is manifest. The plaintiff claimed an open account to be due by somebody, but who the debtor is, is not sure from the declaration or the bill of particulars annexed thereto.

Is it the purpose of the pleader to charge VanDyke and Hamilton individually, and also as corporators ? The bill of particulars is equally uncertain. It is against VanDyke and Hamilton for Yahola. Does not this charge the corporation alone, through their agents VanDyke and Hamilton ? How can anything certain be educed from such defective pleadings ?

Well, it is said that the matters in controversy were refered to arbitrators, and that the reference admits the sufficiéncy and regularity of the pleadings. VanDyke protests that he was no party to this reference, and that nothing can be infered against him. He further contends, it was an illegal submission, being verbal only, and the matter in controversy being over five hundred dollars; and this is true under Section 2826 of the Code.

The trouble all the way through this case seems to grow out of the confusion and uncertainty of the record. Parties are called parties, instead of YanDyke by name, and thus you cannot tell who is meant.

I see but one thing positively certain in this case, and that is, that all the parties litigating were served at the beginning ; but what part they have taken in the controversy since, I am unable to tell from the record.

The Judge below assumes certain things to be true; but upon what proof? The record does not sustain him in these assumptions.

Upon the whole, we think the judgment should be vacated, wrhich leaves the declaration in Court notwithstanding ; and then, if the plaintiff choses to build upon this foundation, very well; he can do so by filing his wi’it against his true debtor, unless the parties, in the meantime, should see proper to adjust this matter of account between themselves, through the aid of mutual friends. There is no legal principle, apparently, involved, but simply a matter of account.

Judgment reversed.