Hambrick v. Scrawford

• Decision Date: 31 July 1875
• Citation: 55 Ga. 335
• Parties: Thomas Hambrick, plaintiff in error. v. Thomas S.Crawford, defendant in error.
• Court: Georgia Supreme Court

55 Ga. 335

Thomas Hambrick, plaintiff in error. v. Thomas S.Crawford, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1875.)

Injunction. Illegality. Attorney. Practice in the Superior Court. Before Judge Hall,. Henry County. At Chambers. June 5th, 1875.

Crawford filed his bill against Hambrick making in substance, the following case:

*On January 12th, 1856, he became security on a note given to defendant, as administrator of Sarah James by James F. Johnson, for $1,675 00, in consideration of the purchase of certain slaves. James F. Johnson was then solvent. The name of J. H. Johnson, the brother of the principal, was also signed to said note as security in advance of complainant's. He was then perfectly solvent. On April 9th, 1859, a payment of $73 48 was made thereon. Hambrick, as administrator, brought suit on said note to the fall term of the superior court of Clayton county. Complainant was ignorant of the fact that the defendant was not then the administrator of Sarah James, he having been discharged from such trust on December 7th, 1857. At the May term, 1860, of Clayton court, James F. Johnson, the principal, who was also an attorney at law, confessed judgments for the defendants to said suit, although he had no authority so to do from complainant. Complainant had no knowledge that any such suit had been instituted against him, never having been served therein; but he has been informed since the rendition of said judgment, that said Johnson acknowledged service for the defendants. This was also without authority from complainant. An appeal was taken from said judgment, and the case continued from term to term until May, 1864, when said Johnson again entered a confession. This was also without the authority of the complainant. In the summer of 1864 defendant came to the house of complainant and requested him to point out property of the principal out of which the amount of said judgment could be collected by levy and sale. This complainant was about to do, and actually accompanied him and the sheriff to Jonesboro for this purpose, but there Hambrick, in consideration of the payment to him of $100 00 by Johnson, agreed to indulge him. This was without the knowledge or consent of complainant. This indulgence was continued until after the close of the late war when nearly all the property of the principal had been lost or destroyed. In the year 1866, complainant's co-obligor departed this lifeand L. G. Johnson administered on his estate. Notice to creditors *to present their claims was duly given, but defendant failed to present his, thereby allowing the estate of said Johnson to be paid to debts of inferior dignity, and to be distributed among his heirs-at-law.

The defendant has settled, as administrator, with all the heirs-at-law of Sarah James, except one, upon the basis that the debt which he is now seeking to collect, was worthless. Therefore he is not entitled to collect anything from complainant. But he has levied upon complainant's lands, wherefore he prays the writ of injunction, etc.

Complainant subsequently amended his bill by setting forth the following facts: At the September term, 1869, of the superior court of Clayton county, said judgment was vacated on the motion of James F. Johnson, on the ground that the consideration of the same was slaves. Thus matters stood until September, 1873, when the defendant caused a levy to be made upon the property of complainant. He at once employed counsel, who advised him that under the recent decisions of the supreme court in the cases of Prescott v. Bennett et al., and Tison, administrator, v. McAfee et al., as more than three years had elapsed since said vacating order was rendered, said judgment was null and void, and that the proper mode of availing himself of this defense was by affidavit of illegality. Complainant fully informed his said counsel as to the indulgence which the defendant had given to Johnson, as heretofore set forth, but was advised that it was unnecessary to make any separate defense of that character to a judgment which had been vacated as to all the defendants. Relying upon this advice, complainant filed his affidavit of illegality, setting up the fact that the...