Cable Co v. Parantha

• Citation: 118 Ga. 913,45 S.E. 787
• Parties: CABLE CO. v. PARANTHA.
• Decision Date: 14 November 1903
• Court: Supreme Court of Georgia

45 S.E. 787

118 Ga. 913

CABLE CO.

v.PARANTHA.

Supreme Court of Georgia.

Nov. 14, 1903.

UNLAWFUL ATTACHMENT—ACTION FOR DAMAGES—EVIDENCE—TRIAL.

1. The charges of the court complained of by direct exceptions in this case, when considered in connection with the entire charge, the evidence, and the verdict rendered, do not appear to have been necessarily controlling. Acts 1898. p. 92 (Van Epps' Code Supp. § 6241).

2. A conversation between the attorneys of the respective parties as to an important issue in the case, had in the absence of the party to be affected by the testimony, ought, on objection, to have been excluded.

3. When the defendant in a tort case assumed the burden of proof, and the plaintiff introduced no evidence, and claimed the conclusion of the argument to the jury, this court cannot say, as matter of law, that the court erred in refusing the plaintiff that privilege.

(Syllabus by the Court.)

Error from City Court of Washington; W. H. Toombs, Judge.

Action by Joseph Parantha against the Cable Company for unlawful attachment. From the judgment, defendant brings error, and plaintiff assigns cross-error. Judgment on main bill of exceptions reversed, and on cross-bill affirmed.

R. C. Norman, for plaintiff in error.

Col ley & Sims, for defendant in error.

TURNER, J. Joseph Parantha sued out, in Wilkes county, an attachment against the Cable Company, alleged to be a corporation of the state of Illinois, returnable to the city court of Washington; and In his declaration he claimed damages against the defendant for suing out, maliciously and without probable cause, an attachment against himself under the Civil Code of 1895, § 4543, which attachment was levied on Parantha's house and lot, in the city of Washington. Parantha further alleged that the judge of the superior court, on a hearing at the defendant's instance, removed the attachment. He further alleged in his declaration against the Cable Company that said attachment, being based on charges of fraudulent conduct, constituted a flagrant violation of his rights, and was a gross wrong upon him, and upon his reputation, peace, and happiness, and did injure and damage him as an employs, whose business it was to attend to important trusts and moneys of his employers, etc. He claimed that he had been maliciously damaged in the sum of $650, and that he had been compelled to employ an attorney at an expense of $50. The Cable Company filed an answer, admitting the material facts on which the suit brought by Parantha was founded, except that it denied that the attachment process sued out by the Cable Company was sued out maliciously. The Cable Company also pleaded that its attachment against Parantha was sued out by its business manager on the advice of its attorney at Washington, R. C. Norman, Esq. The defendant, on account of the admissions contained in its pleas, assumed the burden of proof, and introduced evidence to support its special pleas. The plaintiff, Parantha, introduced no evidence, and claimed the conclusion of the argument before the jury. The court refused the plaintiff this privilege, whereupon he excepted pendente lite, and he brings this question here by way of crossbill. The jury returned a verdict for $50 for the plaintiff, and the Cable Company filed a motion for a new trial on the formal grounds, and also an amended motion for a new trial, and set out in said amendment a complaint that the court erred in admitting in evidence before the jury the following testimony of R._C. Norman: "When the sheriff was entering his levy, which he made under my instruction, and which at said time I drew upon said attachment, P. H. Colley, attorney for Parantha, stated to me that Parantha did not intend to defraud the Cable Company; and I replied that I knew [Parantha] did not intend to defraud the Cable Company, but that, if he sold his house and lot, it would have the same effect upon the Cable Company." The objection to this testimony then and there urged was that Norman's statement was "irrelevant, inadmissible, and mere hearsay; that same was not a solemn admission made for the purpose of alleviating the stringency of some rule of practice, or dispensing with the formal proof of some fact at the trial, but, on the contrary, was a mere statement of opinion made in casual conversation, out of the presence of the Cable Company and its agents, and not shown to have been communicated to them, and was subsequent to making said affidavit and the issuing of said attachment." The city court overruled the motion for a new trial, and the Cable Company sued out a bill of exceptions, assigning error upon certain charges of the court, averring that said charges necessarily controlled the verdict, and also complaining that the court erred In overruling the motion for a new trial.

1. After considering the entire charge of the court, the evidence adduced on the trial, and the verdict returned by the jury, we cannot say that the charges complained of necessarily controlled the verdict of the jury.

2. In regard to the admission of the statement of R. C. Norman, Esq., which in the motion for a new trial is alleged to be irrelevant, inadmissible, and hearsay, it seems that he notified the attorney for Parantha that he had sent the attachment papers to the judge of the superior court, and that the attorney for Parantha asked him (Norman) to allow him to acknowledge service of the levy when the papers were returned, as Parantha would be out of the city, and it would save his wife the annoyance of the sheriff coming to her home and levying on the house and lot during her husband's absence. Norman agreed to this, and, when the attachment papers were returned by Judge Holden, Norman notified the attorney for Parantha, the two attorneys then found the sheriff and took him to Norman's office, and the entry of levy was there made. When the sheriff was entering his levy, which he made under Norman's instructions, the conversation between the two...