Beavers v. Cassells
| Decision Date | 15 May 1937 |
| Docket Number | No. 26219.,26219. |
| Citation | 56 Ga.App. 146,192 S.E. 249 |
| Parties | BEAVERS. v. CASSELLS. |
| Court | Georgia Court of Appeals |
Judgment Adhered to July 8, 1937.
Rehearing Granted June 25, 1937.
Syllabus by the Court.
1. The grounds of the assignments of error and recitals of fact in a petition for certiorari not affirmatively verified in the answer of the trial judge of the lower court cannot be considered.
2. Where, in an application for certiorari, error is assigned on a judgment alleged to have been rendered by the trial judge, and the answer of the judge does not adopt as true or verify the allegations in the application for certiorari as to such judgment, but sends up, attached to his answer, a copy of the proceedings in his court and verifies the same, and it is shown therein that the judgment complained of was in fact rendered, this is a sufficient verification of the existence of such judgment; but where, as in the present case, the trial judge failed to verify the allegations of the petition as to such judgment but stated in his answer, "True copies of all proceedings in said case are hereby certified as true and sent up, all of which your respondent submits, " but the record fails to show that copies of the proceedings were in fact attached to the answer, the existence of the alleged judgment cannot be said to have been verified, and consequently nothing was presented to the superior court for decision.
3. In certiorari, the answer of the trial judge, where not traversed or objected to, is the only source from which the facts and rulings can be ascertained, and is conclusive; and where, as in the present case, the petition for certiorari alleges that the trial judge was disqualified to preside, because he had been of counsel in obtaining a judgment on a note, in pursuance of which judgment an execution had been duly issued and a levy made on certain real estate, to which levy an affidavit of illegality had been filed by the defendant in execution, and it was further alleged that the name of the trial judge appeared on the back of the execution and on the docket of the court, but in his answer the trial judge denied that he had been of counsel, stating that he took the judgment on the note merely as a favor to the plaintiff's counsel, and had no knowledge of, and did not authorize the placing of, his name on the execution or the court docket, and that he had not charged or received any fee and did not have any dealings with, and did not even know, the plaintiff; and where such answer of the trial judge was not traversed or objected to it is conclusive on the question of the alleged disqualification.
4. Accordingly, the superior court did not err in overruling the petition for certiorari.
5. Moreover, on the merits of the case the judgment of the superior court was not erroneous. It is clearly shown by the record that the affidavit of illegality, reciting that the judgment obtained on the note had been settled by an accord and satisfaction therein set out, had not been traversed at the time of the hearing of the issue formed by the execution and affidavit of illegality, under which circumstances the trial judge was authorized to find, at the first term of court, as a matter of law, in favor of the defendant in execution, (a) The execution being lifeless and functus officio, after the settlement of the judgment had been made, the court did not err in quashing the same in addition to sustaining the affidavit of illegality, (b) Under the law and the evidence, it cannot be said that the court abused its discretion in overruling the motion to vacate the judgment rendered.
Error from Superior Court, Lee County; W. M. Harper, Judge.
Proceeding by F. G. Beavers against G. T. Cassells. To review a judgment, plaintiff brings error.
Affirmed.
R. L. Le Sueur, of Americus, for plaintiff in error.
E. L. Forrester, of Leesburg, for defendant in error.
F. G. Beavers filed in the superior court a petition for certiorari to Hon. E. W. Feeney, judge of the city court of Leesburg, reciting that on January 18, 1928, he obtained a judgment in that court against G. T. Cassells for the principal sum of $1,029.83, together with interest, attorney's fees, and costs; that on February 13, 1928, an execution thereon was duly issued, and that one of the attorneys in said suit was the Hon. E. W. Feeney, the present judge of the city court of Leesburg; that on February 18, 1936, the execution was by the sheriff levied on certain land in Lee county, to which levy the defendant Cassells filed an affidavit of illegality which was returned by the sheriff to said court. The affidavit attached to the petition as Exhibit B recites the levy and alleges that on or about February 18, 1928, the affiant and Beavers agreed that if the affiant would transfer and assign to the latter a $200 note due affiant by one John Council, Beavers would accept such transfer and assignment, and that if and when the indebtedness was paid, the sum so realized would be accepted in full accord and satisfaction and compromise of the execution indebtedness; that affiant did transfer and assign such note to Beavers, who, on July 28, 1928, effected collection from Council; that the said agreement, accord, satisfaction, and compromise agreement had been fully executed and for that reason the affiant is not indebted to Beavers on said execution indebtedness in any manner whatsoever, and that the execution should be canceled and delivered up to him; that Beavers took and kept the money so collected, and that, under their agreement, the same was in full satisfaction of the execution indebtedness; that the matter came on for a hearing at the regular April term, 1936, of the city court of Leesburg, which convened on April 20, 1936, and that petitioner, due to a misunderstanding as to which court the case would be tried in, and when tried, did notappear in court on April 20, 1936, and that, in his absence, the said judge set the case for trial. The petition then sets forth the testimony which it alleges was given, and alleges that after hearing the case without a jury, the judge, on April 20, 1936, rendered judgment sustaining the illegality, dismissing the levy, and quashing the execution. A copy of the judgment is attached to the petition as Exhibit C. It is further alleged that thereafter the petitioner filed a motion to vacate the judgment, the motion being amended on April 27, 1936, a copy of the motion being attached as Exhibit D. The copy of motion recites the judgment on the note, the execution, the levy, and the sheriff's advertisement of sale, the affidavit of illegality under date of April 6, 1936, and that on the first Tuesday in April petitioner was advised by the sheriff of the filing of such affidavit of illegality and that the attorney of Cassells furnished him with a copy thereof, the copy not showing to what court the affidavit had been returned, and that in some manner petitioner received the impression that it had been returned to, and would be tried in, the superior court of Lee county; that on April 16, or April 17, 1936, he engaged an attorney to represent him; that his attorney was busily engaged in the preparation of other cases, and though he left with his attorney certain papers which on examination would have shown him that the illegality was pending in the city court, the attorney did not have time to examine them and was under the impression that the case was pending in the superior court, and that petitioner and his attorney did not attend the regular April term, 1936, convening on April 20, 1936, petitioner being absent from home, and the case coming on for trial and there being no traverse to the affidavit of illegality, on account of the aforementioned misunderstanding, the court rendered judgment sustaining the illegality, a copy being attached as Exhibit A; that on the afternoon of the same day the attorney for the opposite party advised petitioner's attorney of such judgment, whereupon he phoned the judge of such misunderstanding. The grounds of the motion were that the petitioner and his counsel failed to appear in court because of the aforementioned misunderstanding; that not sufficient evidence was produced to warrant the judgment rendered, and that the allegations of the affidavit of illegality were not true and that petitioner was prepared to prove that the agreement as to the acceptance of the $200 note was in writing and when introduced in court would prove the allegations of the affidavit to be untrue. It was alleged in the petition for certiorari that the motion to vacate was overruled, a copy of the judgment being attached as Exhibit E; that during the same term of court, on April 24, 1936, the plaintiff filed his traverse, a copy of which was attached as exhibit F, and that on April 29, 1936, he filed a formal joinder of issue, a copy being attached as Exhibit G. Error was assigned on the judgment of April 20, 1936, sustaining the illegality and quashing the execution, and on the judgment of May 8, 1936, refusing to vacate the same, the grounds substantially stated being: (a) That the presiding judge was disqualified because he had been of counsel in obtaining the judgment on which the execution...
To continue reading
Request your trial