Bradshaw v. Gormerly

• Decision Date: 31 July 1875
• Citation: 54 Ga. 557
• Parties: F. M. Bradshaw et al, plaintiffs in error. v. Patrick Gormerly et al., defendants in error.
• Court: Georgia Supreme Court

54 Ga. 557

F. M. Bradshaw et al, plaintiffs in error. v. Patrick Gormerly et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1875.)

*Practice in the Superior Court. Contracts. Evidence.

Money rule. Attorneys. Claim. Before Judge James Johnson. Talbot Superior* Court. March Term, 1875.

Reported in the opinion.

WiLLis & WILLIS, for plaintiffs in error.

H. L. Benning; Peabody & Brannon; Little & Crawford, for defendants.

Jackson, Judge.

Bradshaw and other plaintiffs, among them William' D. Chapman, obtained judgment against William Hall; executions issued thereon, were placed in the sheriff's hands, and levied upon certain land. Gormerly claimed the land, and the cases were all pending in Talbot Superior court. The case of Chapman was tried, and the property found subject. Thereupon the claimant, Gormerly, resolved to bring that case to this court by bill of exceptions; and it was agreed by counsel that the other claim cases, Bradshaw's among the rest, then ready for trial, should not be tried, but should stand continued until the case brought to this court was determined, and all should abide the decision here. Counsel for plaintiffs and for claimant all agreed to this; and claimant, Gormerly, himself stood by in person and assented thereto. This court affirmed the judgment below, the property was sold, and the money brought into court for distribution. Gormerly withdrew his claims in the other cases, and now claims that the money arising from the sale of the land should be paidto him and not to the plaintiffs. On the trial of the traverse by Gormerly, of the petitions of the plaintiffs for the fund, the plaintiffs offered to prove the agreement of counsel referred to above and the assent of Gormerly thereto, which the court refused to allow. They then offered to show that the deed of Hall to Gormerly was fraudulent and void as to them, without consideration, and a mere contrivance to defraud, hinder *and delay creditors. The court refused to permit them to do so. The errors assigned are, that the court erred in these refusals and in ordering the fund paid to Gormerly in preference to Bradshaw and the other plaintiffs in like condition. We think the plaintiffs in error right on each of these assignments of error.

1, 2. The withdrawal' of the claims by Gormerly, on the return of the remittitur from this court, was in violation of his agreement. He himself assented to what his counsel agreed, and it would be to permit a...