Field v. Armstrong

• Decision Date: 30 September 1882
• Citation: 69 Ga. 170
• Court: Georgia Supreme Court
• Parties: Field et al. vs. Armstrong et al.

69 Ga. 170

Field et al. vs. Armstrong et al.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1882.

Money Rule. Evidence. Parties. Practice in Superior Court. Before Judge underwood. Gordon Superior Court. August Adjourned Term, 1881.

In 1875 Willingham, who was plaintiff in a fi.fa. against J. M. Field, ruled the sheriff and called upon him to show why the fi.fa. should not be paid. The sheriff answered, admitting that he had sold the lands of the defendant, and that there was for distribution $16,754.54. He also stated that Lewis Tumlin and E. E. Field bid in the property, but had paid no money, claiming that they had the oldest liens and were entitled to the fund. They were permitted by the sheriff to retain the fund until the case should be decided.

The fi. fas. and mortgages held by these parties and by numerous creditors of the common defendant, which had been lodged in the hands of the sheriff, were returned into court, and the answer prayed that the claimants be required to interplead as to the fund. The claims of Tumlin and Field amounted to more than the amount bid for the property.

Willingham tendered an issue alleging that the large fi. fa. of Tumlin had been paid off, that the mortgages of E. E. Field were paid, and that said mortgages had been satisfied under a decree in Bartow superior court. Armstrong, the holder of a fi.fa., tendered similar issues against the said fi.fa. and mortgages. Issues were joined on all these cases.

The case of Willingham against Tumlin was tried first, and a judgment rendered May 9th, 1876, finding that the Tumlin fi.fa. had been paid off, and that Tumlin should receive no part of the fund until the Willingham claim was fully paid. The issue of Willingham against E. E. Field was next tried, and found in favor of Willingham, and a judgment was rendered postponing the payment of the mortgages held by Field until the claim of Willingham was satisfied. Both of these cases were brought to the Supreme Court and affirmed. 'See 59 Ga., 858; 65 Id., 440.)

When the case was called for trial, issues having been filed by E. E. Field and J. M. Field against Willingham, on motion of E. E. Field, the case as to Willingham was continued.

Counsel for Army strong, another claimant of the fund, moved co proceed with his case. E. E. Field objected on the ground, among others, that Tumlin, another contestant, in his lifetime controlled the oldest fi. fa. aga'ins*defendant; that Tumlin had died pending this litigation, and his administrator had been made a party; that lately said administrator had been removed from his trust and enjoined from meddling with the estate, and a receiver had been appointed to take charge thereof. Counsel for E. E. Field stated that they did not represent the administrator or receiver, but they insisted that the entire case should be continued on this account. The court inquired of counsel whether any issue had been made on Armstrong's fi. fa., and if they knew of any reason why that claim was not a valid, subsisting f, fa. Counsel responded in the negative, and thereupon the motion to continue was overruled.

It was admitted that Armstrong had a valid fi. fa. based on a judgment rendered April 8th, 1867, for the sum of $229.84 principal; that Willingham had a fi. fa. based on a judgment rendered July 9th, 1867; that E. E. Field and tie estate of Tumlin hold, by assignment, fi. fas. based on judgments rendered April 7th, 1862; that E. E. Field held a mortgage on the land sold, dated February ed, 1867, and that he held, by assignment, a mortgage dated February 8th, 1867.

Counsel for Armstrong tendered in evidence the record of the issue, verdict and judgment between Willingham and E. E. Field, showing that the payment of Field's mortgages was postponed to the payment of Willingham's claim; also the record of the issue and judgment between Willingham and Tumlin, determining that Tumlin's claim should be postponed to that of Willingham. Both of these were objected to, on the ground that Armstrong was no party to those proceedings. The objection was overruled, and the records were admitted.

Counsel for Armstrong tendered in evidence the following paper, which was signed by various claimants of the fund, but not by Tumlin or E. E. Field:

"Field and Gray, adm'r Tumlin, vs.Willingham & Armstrong et al.

Bill in Whitfield Superior Court

for injunction.

Willingham vs. Roff, sheriff, E. E. Field andadministrator, etc.

Rule vs. sheriff to distribute money, and issue formed by Willingham and others vs. Field mortgage, Summerour fi. fa. and fi.fa. belonging to Tumlin's estate called the Chisolm fi.fa.

We, the undersigned respondents in bill representing plaintiffs in fi. fa. lodged in sheriff's hands and mentioned in his answer to rule, do hereby acknowledge notice of the issues pending in said court, to-wit: Armstrong vs. Chisolm fi.fa.; Armstrong vs. Summerour fi. fa., the first the property of said Gray and E. E. Field: Willingham vs. Summerour fi. fa.; also the issues of Willingham vs. the Field mortgages and we agree to take notice of any other issues and to be bound bythe decision of such of the issues already or to be made, whether we

are formally made parties or not, it being the object of this agreement to make the decision of one issue decisive of the rights of all parties claiming the fund, and to prevent multiplicity of suits and issues, and to bring us within the rule and decision of the Supreme Court in the case of Foster vs. Rutherford, 20 Ga., 668. September 10th, 1878." Upon this agreement, the following order was passed: Ordered, in open court, in the presence of the parties above named, that the above agreement be entered on the minutes and be filed with the papers in this case."

Objection was made to the introduction of these papers, because neither Field nor Tumlin were parties thereto. The objection was overruled, and the papers were admitted.

The judge, in passing upon the case, rendered a judgment that Armstrong was entitled to have his fi.fa paid, but that as the answer of the sheriff showed that the money had not actually been paid, no rule absolute was rendered against him; but Armstrong was left to his legal remedies to collect the amount due him.

Field excepted, and assigned error on each of the above rulings. Neal, receiver of the Tumlin estate, joined with Field in the bill of exceptions;

R. J. McCAMY; C. D. McCUTCHEN; GRAHAM & FOUTE, for plaintiffs in error.

W. K. Moore, for defendants.

Speer, Justice.

Joseph Willingham, a judgment creditor, brought his rule in Gordon superior court at the February term, 1875, against Roff, sheriff, to answer as to the amount of a fund in his hands arising from the sale of certain lands of James M. Field, and to show cause why out of said fund there should not be paid to movant the amount due him on a certain fi. fa. which he controlled as assignee vs. James M. Field. To this rule the sheriff answered, " admittinghe had sold said lands, and after paying all expenses there was a balance of said sale of $16,764.50 left for distribution, when the same was paid in. That there were placed in his hands certain fi.fas. claiming said funds, and he prayed these contesting claimants might litigate with each other as to their priorities, etc., and that the court should direct how said fund should be distributed." Elias Field, one of the claimants, moved to continue said case as far as the claim of Willingham was concerned, to which claim he, E. E. Field, and also the defendant in fi.fa, James M. Field, had filed an issue, which continuance was allowed. Counsel for Armstrong, a judgment creditor and claimant, also then moved to proceed with his claim against said fund. To this E. E. Field objected for the reasons shown by the continuance of the Willingham claim, and for the additional reason that Lewis Tumlin, in his life, was one of the claimants on said fund. That Tumlin had died pending the litigation, and his administrator, Gray, had been made a party. That lately Gray had been removed and enjoined from meddling with said estate. A receiver on said estate had been appointed, and counsel did not represent said receiver. On inquiry by the court, it was stated that no issue had been made on the fi.fa. of Armstrong, and they knew of no reason why it was not a valid and subsisting lien; on this response, the court overruled the motion to continue the Armstrong case, and plaintiff in error excepted. It was then agreed to submit both the law and facts to the Hon. J. W. H. Underwood, presiding, with right to either party to except.

In the trial had, the court, passing both upon the law and facts, awarded that there should be paid out of said fund arising from the sale of the lands, the amount of the fi. fa. of Armstrong vs. Field, principal with interest to that date.

Upon this finding and judgment of the court, plaintiff in error made his motion for a new trial, on various grounds which were overruled, and plaintiff excepted. The grounds of the motion were:

(1.) That the court erred in refusing to continue said case on the motion made.

(2.) That the court erred in admitting in evidence...