Hayden v. Johnson

• Decision Date: 31 August 1877
• Citation: 59 Ga. 105
• Parties: Julius A. Hayden, plaintiff in error. v. John M. Johnson,trustee, defendant in error.
• Court: Georgia Supreme Court

59 Ga. 105

Julius A. Hayden, plaintiff in error. v. John M. Johnson, trustee, defendant in error.

Supreme Court of the State of Georgia

(August Term, 1877.)

[Jackson, Judge, did not preside on account of relationship to the cestui que trust of defendant in error.]

Pleadings. Judgments. Practice in the Superior Court. Evidence. New trial. Before Judge Hillyer. Fulton Superior Court. April Term, 1877.

Reported in the opinion.

Collier & Collier; Z. D. Harrison, for plaintiff in error.

Hopkins & Glenn, for defendant.

BLECKLEY, Judge.

The declaration alleges that "John M. Johnson, trustee of his wife, Mary Johnson, is indebted, " etc. Copies of the notes are annexed, and they are signed "John M. Johnson, trustee, " without designating any cestui que trust. The notes disclose that they were given for the purchase money of "a lot fronting thirty feet on Marietta street, city of Atlanta, " but do not specify any particular lot on that street. The declaration describes the premises thus: "a certain city lot in the city of Atlanta, fronting thirty feet on Marietta street in said city, being the lot whereon the said Johnson and the beneficiary of said trust estate now reside." The declaration proceeds to allege that the property was purchased *by the trustee for the benefit of the trust estate, and was beneficial to the same, and that the trust estate became, and is, liable for the payment of said indebtedness. Process was prayed against "the said defendant." There is no plea in the record. The court, reciting that no issuable defense had been filed on oath, gave judgment in favor of the plaintiff against "the defendant, John M. Johnson, trustee for his wife, Mary Johnson, " for principal, interest, and costs, adding in the judgment that it was for the purchase money of the city lot, describing it as it is described in the declaration. At the same term of the court, the defendant moved to set aside the judgment for certain alleged deficiencies in the declaration, and because no evidence was introduced, except the notes declared upon. This motion was overruled; and in the order overruling it, the court gave the plaintiff leave to amend the judgment by providing that execution should be levied upon the city lot described therein, and upon that only. The judgment was amended accordingly. Afterwards, during the same term, the defendant moved for a new trial, because the judgment was rendered without sufficient evidence, and because the amount awarded for interest was in excess of the amount due. The court granted the motion on the former ground; and the correctness of that ruling is the matter now in question.

1. Default, according to the system of practice which has long prevailed in this state, is not equivalent to a confession of the plaintiff's cause of action. The defendant, while in default, may resist, passively, whatever is brought to attack him, but cannot make a counter attack. Though not allowed to return the fire, he is not obliged to run, but may stand until he is shot down. Exceptions to the general rule are made by statute, but this case is within the rule itself. 41 Ga., 76; 48 Ib. 551.

2. The authorities just cited, show that when the plaintiff is the sole party entitled to introduce evidence, he must make outhis whole case. He must establish prima facie his right to recover according to his declaration, 56 Ga., *640; 55 Ib., 475. Whether, on matters of fact, he is before the jury or before the judge, can make no difference in his burden. He must produce enough evidence to manifest the truth of every material allegation. There is a trial to that extent, though there be no issue on the record. There must be an examination of evidence, and a determination of such facts as the declaration necessarily involves. The law, itself, by requiring evidence, puts the truth of these facts in issue, and keeps up the issue till the facts are established. If the case is proceeding without a jury, the judge performs the functions of a jury; and if he makes a wrong judgment, whether for the plaintiff or against him, he can correct his error by granting a new trial, when a new trial is duly demanded. It would be strange if the judge could apply this corrective to the errors of a jury, on matters of fact, and could not apply it to his own. The power conferred by the constitution, (Code, sec. 5091,) to grant new trials, may, without violence to the letter, receive a construction sufficiently broad to embrace the present case. In 1 Kelly, 306, is an instance of new trial granted after judgment confessed; and in 55 Ga., 475, a defendant who had not pleaded issuably, or otherwise, applied for and obtained a new trial. The whole tenor of...