O'barr v. Alexander

Decision Date31 December 1867
Citation37 Ga. 195
PartiesRobert O'Barr, plaintiff in error. vs. Alexander and Trammell, defendants in error.
CourtGeorgia Supreme Court

Case. Tried before Judge Milner. Motion for new trial, decided by Judge Underwood. Floyd Superior Court. July Term, 1867.

John T. Alexander and Wm. T. Trammell, Attorneys at Law, made and delivered to O'Barr their receipt for the following note:

"$546,98. By the twenty-fifth day of December next, Ipromise to pay Robert O\'Barr or bearer, Five hundred and forty-six dollars ninety eight cents, for work done on hotel, with interest from date. May 17th, 1851.

L. J. HILBURN."

They brought suit on it for O'Barr against Hilburn, in Floyd Superior Court, averring therein that the consideration of said note "was carpenter's work done by petitioner, his agents, servants and journeymen, on the building known as the Hilburn House in the city of Rome, in said county, which hotel is situated on premises (here at length fully described by metes and bounds) and for which a lien was filed, " etc., making by the writ, and an amendment of it, a case for a mechanic's lien on said premises.

The case went, by consent, to the appeal. At the trial they obtained a verdict for the principal and interest with a lien on the one undivided fourth of said house and premises, and judgment was accordingly entered on the 7th of December, 1855.

But the money was not collected, and because of this failure to collect, O'Barr sued Alexander and Trammell. When this suit was filed, does not appear by the record, but the process thereon was dated 19th of October, 1858.

At the trial of this case, plaintiff's attorneys moved for a continuance, stating in their place that plaintiff was absent and they could not so well conduct the trial without his presence and aid; that the plaintiff had, for some time past, resided in St. Louis, Missouri, and, by his letters, induced them to believe that he would be present at the trial, until about the time the Court convened, they received from him a letter mailed and purporting to have been written in St. Louis, stating that he was sick and unable to travel, and asking a postponement of the trial till he could come. The motion was overruled and the case proceeded.

Plaintiff's attorneys read in evidence said suit of O'Barr vs. Hilburn and the accompanying lien-papers, etc. They then introduced the following oral evidence:

Thomas G. Waters testified that, he was Sheriff of Floyd county in 1853 and 1854; that said Hilburn's shares andinterest in said House were sold by witness at Sheriff\'s sale. This left Hilburn insolvent; the other fi. fas. against him were returned nulla bona. Twelve of said shares were sold in May, 1853, for upwards of $1,000.00, and the balance of Hilburn\'s interest in said House was sold not long before or after said last date.

Trammell, one of these defendants, controlled some of the fi.fas. which were levied on, and sold said shares and ordered the levies made; he bought some of said twelve shares at said Sheriff's sale in May; his bid was $515.00, but he paid over only $75.00, saying that he had other fi. fas. to take the balance of his bid.

The money paid to witness as Sheriff, say about $400.00, was, by order of Court, applied to an old fi. fa. controlled by Col. Akin. Trammell knew how the money was applied, and paid over the $75.00 to satisfy Akin's demand; but so as witness recollected, he did not claim any of the money for O'Barr. Trammell had Akin's fi. fa. levied on the property. The fi. fas. and execution docket being lost, witness could not tell what fi. fas. got the balance of the money, but it was all paid to fi. fas. against Hilburn. The fi. fa. which sold the twelve shares was Morton & Courtenay vs. L. J. Hilburn. All the purchasers paid their bids except Trammell.

R. D. Harvey testified that an order of Court was taken at August Term, 1853, requiring the Sheriff to pay to Warren Akin, as attorney, 417.50 on a fi. fa. in favor of Baker & Hart vs. Hilburn and said fi.fa.wascharged to Trammell, defendant, on the execution docket, 4th of October, 1853, and this was the last entry as to said fi. fa. He knew the facts by an examination of the records before they were lost.

Daniel S. Printup testified that he controlled, as attorney, fi. fas. against Hilburn, about the time of the May sales; Hilburn, about that time, became insolvent. Many fi. fas. against him were returned nulla bona, and he continued insolvent till this suit was brought. Hilburn left Floyd county about that time; has now a valuable settlement ofland in his possession in one of the upper counties, but witness did not know whether he had paid for it.

W. T. Trammell, defendant, testified that he failed to claim said money for O'Barr, because O'Barr, and Alexander and Trammell, as his attorneys, were claiming a lien on the whole building and premises, and not on Hilburn's interest only, and he thought they would sustain the lien on the whole, and because his fi. fas. were against Hilburn only and could not bind the interests of the other part owners, he thought by letting the said money go to said fi. fas. he would eventually get O'Barr's money ont of the interest of the other part owners; but he knew Hilburn did not own the whole house.

Hilburn now is in possession of a good settlement of land in Catoosa county; but witness did not know whether it was paid for. He paid out all of his bid to plaintiff's in fi. fas against Hilburn, which plaintiff's witness represented, except the $75.00 that was coming to witness individually, and was paid back to him by George S. Black.

Col. Warren Akin testified that he represented the other part owners in the hotel in resisting O'Barr's lien, and he believed, till the Supreme Court decided the contrary, that said O'Barr had no lien, and he thinks Messrs. Wright and Shropshire, his associate attorneys, had the same opinion.

Judge Jno. W. H. Underwood testified that, as he recollected, the first time they went into a trial of O'Barr vs. Hilburn, Judge Irwin, presiding, ruled that O'Barr, being a sub-contractor, had no lien; but the case was then transferred to the appeal by consent, and on the appeal Judge Trippe held the contrary; that he thought between the attempted trial and the appeal trial the Supreme Court had made some decision, from which they inferred that they would sustain the lien on Hilburn's interest.

It was admitted that Alexander and Trammell represented O'Barr in Hilburn vs. O'Barr in the Supreme Court, and that that Court confirmed the judgment giving a lien on Hilburn's interest only. (See 19th Ga., 591.)

Sometime during the trial, defendant\'s attorneys wrote on the declaration a plea of the statute of limitations, but did not give plaintiff\'s attorneys notice of filing this new plea.

Plaintiff's attorneys requested the Court to charge the Jury "If the statute authorizing the mechanic to claim the money on sale of property by other fi. fas. is plain, then it is not an intricate legal question."

The Court refused so to charge, but charged that, to render an attorney liable for a mistake, he must have been grossly at fault or grossly negligent; he is not answerable for error in judgment upon points of new occurrence or of nice or doubtful construction. If the Jury believe from the evidence that O'Barr claimed and recorded a lien on the whole house and lot, and insisted that Hilburn was merely an agent for the Hotel Company, and if the Jury shall further find, from the evidence, that the Circuit Judge decided that there was no lien on the house and lot, and if the evidence shows that the money raised from the sale of Hilburn's interest in the house was paid out by order and judgment of the Court to other fi.fas. and if the evidence shows that other competent attorneys believed that no other lien existed in favor of O'Barr; if all of these facts exist, they are to be considered by the Jury in determining the question of reasonable skill or gross negligence.

The verdict was for the defendants, the jury having staid out some time.

There was a motion for new trial on the following grounds:

1st, 2d, 3d. Verdict contrary to the evidence, etc.

4th. Because the officer in charge of the jury told them that the Judge had said that, unless they soon agreed, he would keep them there a week or two without food, and by this, the jury was unduly influenced.

5th. Because a quart of whisky was furnished to and drunk by the jury (before they agreed on a verdict) without the...

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  • Berman v. Rubin, 51940
    • United States
    • Georgia Court of Appeals
    • May 13, 1976
    ...144, 148, 50 Am.Dec. 386. Thus, while the standard of care required of an attorney remains constant, its application may vary. O'Barr v. Alexander, 37 Ga. 195. Two important considerations in particularizing this rather general standard in a given case are the number of options abailable to......
  • Com. v. White
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    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 5, 1888
    ...Bank, 17 C.B. 161-175; Straker v. Graham, 4 Mees. & W. 721; Rex v. Simons, Sayer, 35; 1 Greenl.Ev. § 252; Hil. New Trials, 240; O'Barr v. Alexander, 37 Ga. 195; Allison v. People, 45 Ill. 37; Knowlton McMahon, 13 Minn. 386, (Gil. 358;) Hall v. Robison, 25 Iowa, 91; Bishop v. State, 9 Ga. 12......
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    • April 16, 1912
    ... ... Tucker, 4 Johns ... (N. Y.) 487; Clum v. Smith, 5 Hill (N. Y.) 560; ... Meade v. Smith, 16 Conn. 346; O'Barr v ... Alexander, 37 Ga. 195; Allison v. People, 45 ... Ill. 37; Knowlton v. McMahon, 13 Minn. 386 (Gil ... 358), 97 Am. Dec. 236; Vaise v. Delaval, 1 T. R. 11; ... ...
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    ...State, 17 Ga.App. 268(2), 86 S.E. 461; Simmons Lumber Co. v. Toccoa Furniture Co., 26 Ga.App. 758(3), 107 S.E. 340. 2. Citing O'Barr v. Alexander, 37 Ga. 195(6), the appellant attacks the jury verdict because an unauthorized person, without the knowledge or consent of counsel, visited the j......
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