Carey v. Giles

• Decision Date: 30 June 1851
• Docket Number: No. 1.,1.
• Citation: 10 Ga. 1
• Parties: Edward Carey, assignee of the Bank of Columbus, plaintiff in error. vs. John M. Giles, receiver of the Bank of Macon, defendant.
• Court: Georgia Supreme Court

10 Ga. 1

Edward Carey, assignee of the Bank of Columbus, plaintiff in error. vs. John M. Giles, receiver of the Bank of Macon, defendant.

No. 1.

Supreme Court of the State of Georgia

JUNE TERM, 1851.

Motion to dismiss writ of error. For a statement of the facts, see next case.

S. T. Bailey and McDonald, for the motion.

Poe and Chappell, contra.

By the Court.—Nisbet, J. delivering the opinion.

Upon looking into the record, we find that there was some evidence to sustain the verdict rendered for the complainant, the receiver of the Bank of Macon, and therefore, we rule at once, in accordance with numerous adjudications heretofore made, that we will not entertain the ground taken for a new trial in the Court below, and now insisted upon, to wit: " that the verdict was contrary to evidence." So ruling, none of the evidence which the protest in the joinder of the issue claims to be omitted in the bill of exceptions, can become necessary to elucidate or to adjudicate that ground.

The protest claims, that the writ of error shall be dismissed upon two grounds—1st. Because a brief of the oral, and copy of the written evidence given in the Court below, are not embodied in the bill of exceptions; and 2d. Because none of the co-defendants (Towns and others) of Edward Carey, the assignee of the Bank of Columbus, are made plaintiffs in error with thesaid Carey in the writ of error, or in the assignment. Under the first ground, there are several specifications.

And 1st. It is said, that the questions propounded to the witness, J. L. Jones, who was examined by commission, are not embodied in the bill. The answers of the witness are there. There is but one contingency upon which it would be necessary to insert in the bill the questions as well as the answers of the witness, and that is, where the answers are unintelligible without them. That is not the case in this instance.

The appointment of John M. Giles receiver of the Bank of Macon, is not embodied in the bill. It was not necessary to embody it, because no one of the exceptions grew out of this piece of evidence; nor is it at all necessary to the elucidation of any one point of error taken.

An account current between the Bank of Macon and the Bank of Columbus, is not in the bill. It is a sufficient reply to this ground of protest, that the account current referred to, is appended to the answer of the Bank of Columbus as an exhibit, and comes here with the record. Being a part of the record of the case, it is obliged to come up with the balance of the record. These things being so, there was no necessity to make this paper a part of the bill.

It is protested that the schedule of notes transferred by the Bank of Macon to the Bank of Columbus, to set aside which transfer, the bill was filed, and the receipt of Seaborn Jones, the President of the Bank of Columbus thereon, are not embodied in the bill of exceptions. The statement which the bill makes about this schedule and receipt is, that the complainant in the bill below, offered in evidence, " a receipt of Seaborn Jones, President of the Bank of Columbus, to L. Atkinson, Cashier of the Bank of Macon, for the notes in controversy, a copy of which is hereto annexed, marked exhibit B."

The rule requires, that a copy of the documentary evidence shall be embodied in the bill of exceptions. This paper is clearly material; and it is also clear, that the rule has not been literally complied with.

But we think the rule has been substantially complied with.

The paper is referred to in the bill, and described in general terms, as the receipt of Seaborn Jones, President of the Bank of Columbus, to L. Atkinson, Cashier of the Bank of Macon, for the notes in controversy; and the bill of exceptions states that a copy of the same is annexed to it, as an exhibit, marked B. and the presiding Judge certifies, not only in the usual form, that the bill of exceptions is true, and consistent with what transpired in the cause before him, but that the exhibits attached thereto, are true also. He says, " I certify that the foregoing bill of exceptions with the exhibits attached thereto, is true and consistent with what transpired before me in the cause." The certificate of the Judge identifies the exhibit, that is, the receipt of Seaborn Jones, as the paper which was offered in evidence on the trial. This we think sufficient; it is a compliance with the rule.

What difference is there between writing a copy in the body of a bill, and describing the paper and appending a copy to the bill, which copy is before the Judge, and to which he certifies? In the latter case, it receives the sanction of the Judge, as a part of the bill, and comes to us with his authentication. The same things, and no more, are true in the former case. It is not safe or wise, on motions to dismiss a writ in this Court, the effect of dismission being to shut its doors forever against the party who believes himself aggrieved in the Court below, to adhere too closely to the letter. The objection to this whole matter is, that there is no certainty that the paper which the Judge inspected, and to which he certified, is the paper which appears before us. It is said, that another and different paper may have been fraudulently substituted for the original exhibit. This is true, and to which these replies may be made: 1st. All the pleadings are liable to be altered by any officer of the Court base enough to do it, if, in the bill, this paper might be fraudulently altered. Perfect assurance and safety cannot be had. We are obliged to trust to the fidelity of officers in part. The penalty Which the law imposes on official frauds, is also a guarantee of safety. But in this case, it is hardly possible that a fraudulent substitution could be made without detection, because the paperis described in the bill, and if the exhibit should materially vary from the description, this Court would arrest the writ.

Again, the same paper we find with the record. A motion for a new trial being made in the Court below, a brief of the evidence certified by the Court, was filed under the rule. This brief contains this document, and the Clerk has sent it up with the record. The authenticity of the exhibit is thus made manifest. The brief of testimony filed below, on the motion for a new trial, is not a part of the record which the Clerk is required to send up. Hence, as we held in Milledgeville, when this brief appears with the record, that fact will not dispense with the same evidence being embodied in the bill. See O. and A. Wetmore vs. John Chavers, at Milledgeville, in May, 1851. Vol. 9, Geo. R.

The brief being sent in this case with the record, serves the purpose of identification, and no more. The bill of exceptions, on these views and facts, we hold sufficient, whilst at the same lime, we should regret to see it grow into a precedent. The better plan, is always to insert all the testimony in the body of the bill. These remarks apply to the appointment of John M. Giles, receiver, and to the account current between the Bank of Macon and the Bank of Columbus; for these papers were referred to in the bill, and copies appended as exhibits, and certified to in the same way, by the presiding Judge.

It is claimed that the bill is defective, because it does not contain the record relied upon by the plaintiff in error, to support his plea in bar, which was overruled by the presiding Judge. A statement is here necessary, to make this ground of protest and our decision on it, at all intelligible. Fortunate will he be, who understands this record, with all the light that...