Carithers v. Venable

• Decision Date: 31 July 1874
• Parties: R. T. Carithers, plaintiff in error. v. Delila M. Venable,defendant in error.
• Court: Georgia Supreme Court

52 Ga. 389

R. T. Carithers, plaintiff in error. v. Delila M. Venable, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1874.)

Judgments. Husband and wife. Divorce. Attachment. Judicial sale. Before Judge Rice. Jackson Superior Court. August Term, 1873.

*On the 8th day of August, 1871, Delila M. Venable commenced her action of ejectment against R. T. Carithers, who pleaded the general issue. The plaintiff relied for title on a decree of Jackson superior court in an action of divorce, in the matter of Delila M. Venable v. John Venable, dated... day of......, 1867, decreeing to the said Delila for life, and then to her minor children, a certain house and lot in the town of Jefferson, in said county. Title in John Venable was admitted by the defendant, but he set up the following facts as showing title in himself:

On the 10th of July, 1867, one Cicero C. Thompson obtained a judgment against said John Venable, in the county court of Jackson county, for the principal sum of $383 00, besides interest and cost. Under and by virtue of a fi. fa. issued upon said judgment, John S. Hunter, sheriff, on the 2d of August, 1867, levied on said house and lot, and on the first Tuesday in September thereafter, sold said property to the highest bidder, when said Thompson purchased the same, and a deed was made accordingly. On the 26th of October, 1867, Thompson conveyed said property to Mary J. Thompson, who, through her agent, said Cicero C. Thompson, on the 17th of May, 1871, executed a deed to the defendant. Said sheriff, by virtue of said sale as aforesaid, placed said Cicero C. Thompson in possession of said house and lot, which said possession was transferred to, and is now in said defendant.

The presiding judge having ruled that it was necessary for the defendant to show upon what debt or debts the judgment was founded from which said fi. fa. issued, he offered (besides the deeds before mentioned, and the fi. fa. under which said property was sold, and a fi fa. in favor of P. F. Hinton against said John Venable, on which was a credit of $100 00 of the money arising from the sale of said property,) the following evidence, to wit: a note from John Venable to W. S. Thompson & Son for $183 55, dated 10th of January, 1863, anddue one day thereafter. The oral testimony of Cicero C. *Thompson, who swore that the judgment in his favor (on which the fi. fa. was issued, and which was levied on the property in dispute, and by virtue of which said property was sold,) was based on said note, together with an account, which account bore date subsequent to the separation of DeLila M. Venable and John Venable, and which account was for board of said Delila.

E. M. Thompson swore that he was one of the firm of W. S. Thompson & Son, and that said note was a part of the claim on which said fi. fa. issued.

W. J Pike swore that he was one of the firm of Davis & Pike, attorneys at law, who were employed in said cause; that the suit on which the judgment was obtained and the fi. fa. issued, was commenced by attachment returnable to the inferior court; that before the cause was tried, the county court was established, and the said matter was transferred to it; that W. L. Marler, the county judge, having been of counsel for Venable, was disqualified, and it was, by consent of counsel, tried by John R Hancock, one of the Judges of the inferior court; that he had searched the clerk's office for the original papers, declaration, plea, etc., and that they could not be found.

T. H. Niblack, clerk, swore that said papers were not of file in his office, nor were they of record there.

The plaintiff offered the following oral testimony in rebuttal, to-wit: That of Wyn A. Worsham, who swore that said Cicero C. Thompson, the night after the finding of the jury in the divorce case above mentioned, expressed himself as satisfied with said verdict. That of John J. McCullock, who testified as to the same facts sworn to by Worsham, and the additional fact that he said he would not sell said land under the aforesaid levy; that after said sale he expressed himself as being sorry that he had sold it, and that the defendant was in possession of the premises in dispute; that said premises were worth for rent the sum of $80 00 per annum; and, also, that of G. R. Duke, who swore that he was the agent of John Venable, with instructions to stop said sale under said levy *by affidavit of illegality; that Thompson agreed with him not to sell the same.

Alter the charge of the court, the jury returned a verdict for plaintiff tor the premises in dispute, and $240 00 mense profits.

The defendant moved the court for a new trial on the following grounds, to-wit:

1st. Because the verdict was contrary to law.

2d. Because the verdict was contrary to the evidence.

3d. Because the court erred in charging the jury, "that they had a right to inquire whether or not the fi. fa., which accompanied the sheriff's deed of defendant, was founded upon a judgment in a cause commenced by attachment; and if they believed it to be an attachment judgment, they should inquire whether or not defendant in attachment had notice served on him according to law of the pendency of the attachment, or appeared personally or by attorney, and made defense to the attachment suit, or gave bond and security for the forthcoming of the property, and it the jury believed from the evidence that no one of these three means had been employed to make the judgment a general judgment, then the judgment was only a judgment against the property levied on, and not a judgment against all of defendant's property, and was therefore void, and the fi. fa. issued thereon void also, and the sale under it a nullity."

4th. Because the court erred in charging the jury, "That they could inquire upon what debt or debts the judgment was founded, and if they betieved, from the...