Hi11yer v. Brogden

• Decision Date: 30 September 1881
• Citation: 67 Ga. 24
• Parties: Hi11yer . vs. Brogden.
• Court: Georgia Supreme Court

67 Ga. 24

Hi11yer . vs. Brogden.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1881.

Principal and Agent. Possessory Warrants. Before Judge Fleming. Chatham Superior Court. December Term, 1880.

Mrs. Brogden, by her agent, William F. Brogden, sued out a possessory warrant against C. V. Hillyer before a justice of the peace to recover a certain United States treasury draft drawn in her favor.

At the trial the evidence for the plaintiff was, in brief, as follows: Mrs. Brogden had a claim against the United States government for property taken by the federal army. She presented her claim before Virgil Hillyer, a claim commissioner. She never had any contract with C. V. Hillyer. The draft in payment of the claim was sent to Todd for Mrs. Brogden. Todd delivered it to C. V. Hillyer, who claimed pay for his alleged services, and, upon her re-fusal to accept fifty per cent. of the draft, he declined to deliver it to her.

Todd was not employed by Mrs. Brogden to represent her, but had agreed to allow C. V. Hillyer to file claims in his name, as C. V. Hillyer could not file them in his own, on account of his being a clerk in the claim commissioner's office. Papers in relation to these claims, when sent to Todd, were forwarded by him to C. V. Hillyer; among them was this draft payable to Mrs. Brogden's order.

The evidence for the defendant was, in brief, as follows: Up to the time of the surrender of the draft to the officer, no one had possession of it except C. V. Hillyer and his representatives. c. V. Hillyer had a verbal contract with Mrs. Brogden to collect this claim, had incurred expense in collecting it, and claimed a lien thereon for his fee and expenses. C. V. Hillyer appointed Todd to represent him in Savannah on account of his removal to Fernandina, Florida, and thus insure all parties against any injuries which might arise from his absence.

The draft was not sent to Todd for Mrs. Brogden; her name did not appear on the envelope at all, but the letter of transmittal in which it was enclosed, as well as the envelope, was directed to the "Attorney of Record."

The justice of the peace awarded possession of the draft to Mrs. Brogden, but required no bond of her. Hillyer carried the case to the superior court by certiorari. The court affirmed the judgment of the justice, holding that the possession of Todd was the possession of his principal, and that Mrs. Brogden was his principal, and not C. V. Hillyer, who, being disqualified from representing claimants in person in the court, was also disqualified from representing them by agent.

To this judgment of the court Hillyer excepted, and assigned the same as error.

Garrard & Meldrim, for plaintiff in error.

Lester & Ravenel, for defendant.

Jackson, Chief Justice.

The superior court on certiorari affirmed the judgment of the justice of the peace, awarding to the plaintiff below a draft which the defendant had in possession, and error is assigned here on that judgment.

1. The proceeding had was a possessory warrant, and the point on which the plaintiff in error mainly relies is, that defendant in error never had such possession of the draft as to authorize this remedy.

There can be no doubt that prior possession in the plaintiff in such a proceeding must appear; because the statute so, in effect, declares, and the decisions of this court construing it are equally explicit. Code, §4032, and supreme court decisions passim.

Do the facts then show that Mrs. Brogden was in possession of the draft in question before it got into the possession of Hillyer? The draft is for property of hers destroyed by the federal army, payment of which was allowed by the court of claims at Washington; it was payable alone to her; it was sent by mail to one Todd, who had acted as her agent at Washington, representing himself as such, and to whom, in the character he assumed of being her agent, it was sent by mail by the proper officer of government for her. It could be of no use to anybody but her without her indorsement, and it was sent to Todd as her agent. Under these facts, we hold that his possession was hers. He, as her agent, could, by possessory warrant, have recovered its possession from any person...