Austin v. William Markham. In Error
| Decision Date | 31 July 1871 |
| Citation | 44 Ga. 161 |
| Parties | JAMES M. AUSTIN, plaintiff in error. v. WILLIAM MARKHAM. defendant in error. |
| Court | Georgia Supreme Court |
New Trial. Bankrupcty. Contracts. Before Judge Wright. Fayette Superior Court. April Term, 1871. Markham sued Austin for $——and interest, averring as follows: He obtained a judgment against Austin. Afterwards Austin filed his petition in Bankruptcy, and was declared a bankrupt under the Bankrupt Act of 1867. Markham proved this judgment as a debt against Austin's estate, and when Austin applied for his discharge in bankruptcy, opposed it. In consideration of the premises and of Austin's promise to pay him the sumnow sued for, if Markham would withdraw his opposition to said discharge, Markham *did withdraw it, and Austin was discharged; and yet Austin refuses to pay said sum. Austin pleaded his said discharge in bar of this suit. Markham replied, a promise since said discharge. Judge Bigby dismissed the cause because of said discharge. At the next term, Markham\'s counsel averred that said cause was called on the last day of the Court, after the juries were discharged, and after he had left the Court, and moved to reinstate it. Judge Wright reinstated it, and that is assigned as error.
R. T. Dorsey; Hugh Buchanon, for plaintiff in error.
Tidwell, Fears & Arnold, for defendant.
1. We are inclined to think this motion to reinstate came too late. If the Court erred in dismissing the suit, was it not a simple error of law? And, if so, why is not the movant barred by his failure to except to the decision, as required by the Code, within thirty days after the adjournment of the Court? A Court may, at the next term, hear such a motion when the judgment was based upon some mistake of fact or fraud, etc., but even then there ought to be some reason why the motion to reinstate was not made at the term. But if the error be simply an error of law, it would seem that there ought to be the same excuse for delay as is required to excuse delay in a motion for new trial.
2. Were this an action on the promissory note, which is the debt promised to be paid, we should not be so clear that the production of the certificate of discharge would authorize the Court to dismiss the suit. Why is this plea in bar different from any other plea? Is there anything in such plea which divests the jury of jurisdiction? Why is not the fact of discharge a matter to go to the jury, just like any other fact? There, it is...
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