Yarborough v. Lumpkin

52 Ga. 280

• Court: Supreme Court of Georgia
• Decided: January 15, 1874
• Status: Published

Opinion

Trippe, Judge.

1. Without intending to hold that a plaintiff in an execution, sued out on the summary foreclosure of a laborer’s or mechanic’s lien, is obliged! in order to give legal force or efficacy to his fi. fa. in a contest over a fund in court, to attach the affidavit made by him in order to get the execution, we think the proof, in any view we take of this case, that such affidavit was to the fi. fa. when it was handed to the sheriff, and had been “lost off or worn off” whilst in his hands, was sufficient to let in the execution. If it appeared to be entitled to the fund — was older than the contesting liens — the loss of the affidavit should not cause the creditor to lose all his rights. I am pretty strongly inclined to think that it is not a legal necessity to attach the affidavit to the fi. fa. But if it were, it appeared that it had been so attached, and had become detached whilst the officer had it.

2. As to the difference in the Christian name of the defendant in the fi. fas. — in one it being Steedon Bray, and in the other Stogner Bray — it was shown to the satisfaction of the court that they were the names of the same man, or in other words, that the identity of the defendant in the executions was proved. It is true, this proof was the statement of counsel to the court, but it was not objected to as not being proper evidence, and as the court certifies, the fact thus stated was not denied. It was a question for the court to determine under the testimony.

3. It was in evidence that the property levied on had been claimed by A. J. Bray; that the chief creditor, Ford, who represented plaintiffs in error, had agreed with the claimant’s counsel that if the claim was withdrawn, and the property' allowed to go to sale, their fee should be paid out of the proceeds of a certain part of it, which was admitted, when the agreement was made, to belong to the claimant. It did not appear what that property, so admitted to belong to the claimant, was worth, nor what the fee of counsel was. On this state of facts, the court directed $>25 00 to be retained in the sheriff’s hands, subject to a trial by a jury, as to the claim of the attorneys for their fee. All this could be seitled satisfactorily by a jury. The attorneys, by special agreement, were to have their claim paid out of the fund. That fund was in court, and all parties before it who had an interest in the money. Nobody could be. hurt by the direction the court gave to this branch of the case, and a jury could adjust the very question the parties had agreed to. 0*f course, the fact as to such an agreement having been made, the amount of the fee, and any other matter legally affecting the question to be determined, were proper for consideration by the jury.,

4. After the court had heard all these questions, pronounced upon them, and announced its judgment for the appropriation of the fund, it was proposed to tender an issue denying the lien of the oldest fi. fa., and to set up that the plaintiff therein had not, in fact, done the work on which his claim was founded. The court refused to allow this, on the ground that the case had been heard and was disposed of. We do not know that the record shows exactly how the case' proceeded whilst being heard by'the court. The judge certainly understood that the whole matter was before him for adjudication ; that all the rights of the parties, as they might stand upon a full hearing, were then to be passed upon. After he had given this hearing to the parties, and decided every question, even to the disposition of the fund, the further right was asked to be let in to deny the validity of the claim of one of the contesting creditors. No reason was stated why this was not done before the judgment of the court was pronounced, and no information given that if the parties lost on the grounds they had taken, they had another. Had they done •this, doubtless the court would have heard all the questions at once. It was a matter with the court whether it would allow the case to be opened at that stage, and we cannot say there was an abuse of discretion. Had the proposition to contest further the claim which had been allowed been supported by affidavit, it would have presented a strong case to the court, especially if coupled with good reasons for not sooner presenting that ground. But the court had all before it — could see and understand the reasons upon which it acted as to that question better than we possibly can.

Judgment affirmed.