Holcombe v. Roberts

• Decision Date: 28 February 1856
• Docket Number: No. 116.,116.
• Parties: William Holcombe, plaintiff in error. vs. Geo. W. Roberts, defendant.
• Court: Georgia Supreme Court

19 Ga. 588

William Holcombe, plaintiff in error. vs. Geo. W. Roberts, defendant.

No. 116.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1856.

Motion, in Floyd Superior Court. Decided by Judge Trippe, December Term, 1855.

This was a motion in arrest of judgment. Holcombe had sued Roberts for slanderous words. The action was brought in the form prescribed in the Act of 1849-'5o, "to curtail and simplify pleadings." The words charged were, "he has sworn a d —d lie and I can prove it." There were no other allegations in the declarations.

The Jury returned a verdict of $1,000 for the plaintiff.

The defendant moved in arrest of judgment, on the ground that the words charged are not actionable per se, and the declaration contains no averment to make them so.

The Court sustained the motion and arrested the judgment. While the motion was pending, the security of Roberts (who had been held to bail in the action) came into Court and delivered him up; and when the Court decided the question, plaintiff requested that the defendant might not be discharged until he could make out a bill of exceptions, to take the decision to the Supreme Court. The Court refused the application and discharged the defendant, and both these decisions are alleged as error.

Wright & Shropshire, for plaintiff in error.

Alexander, for defendant.

By the Court. —Lumpkin, J., delivering the opinion.

The proof having been allowed as to the colloquium in this case without objection, we are not prepared to say but that the motion in arrest of judgment came too late, even at Common Law.

In Hawks against Patten, decided at Milledgeville, this Court held that it was not error in the Circuit Judge to allow an action of slander under Jones' Forms, tobe amended by supplying the colloquium. But we thought then, and so hold now, that no such amendment was necessary. It was unquestionably the intention of the Legislature to authorize all actions of slander to be brought under the forms prescribed by the Statute; and if this be so, then, according to the repeated adjudications of this Court as to the proper construction of the Act of 1849-'5o, it is only necessary for the plaintiff to declare according to the form dictated by the law, and everything else may be supplied by the proof.

It is rather amusing to see defendants affect such profound ignorance of the cause of complaint against them, and for which they are summoned to Court, because, forsooth, the colloquium is left out of the writ! especially after verdict, when the whole matter has been brought out by the evidence! No such particularity is exacted, even in criminal pleadings.

As to the discharge of the defendant by the Court, we can only reiterate what this Court said in Lindsey vs. Lindsey, (14 Ga. Rep. 657,) namely: that a party suing out a bill of exceptions is not entitled to a supersedeas until the bill of exceptions is filed; still, we recommend, in strong language, to the Courts, to allow a reasonable time for the bill of exceptions to be made out before the judgment of the Circuit Court is carried into effect, provided irreparable injury may otherwise result.

The last Legislature failed to supply this casus omissus in the Act of 1845 organizing this Court.

SUPERSEDEAS. "The intention of the plaintiff's counsel to apply for a certiorari was no supersedeas of the judgment, even had his intention been disclosed before the safe was turned over; but it was not declared till afterwards. Possibly, had he applied to the justice's court for an order to detain the property until he could sue out a certiorari, it could have been granted. Lindsey v. Lindsey, 14 Ga. 657; Holcombe v. Roberts, 19 Ga. 588; Crawford v. Ross, 39 Ga. 44. But in the absence of such an order, the supersedeas could come into existence only with the sanction of the petition for certiorari, and would operate then only to stay further proceedings, not undoing anything that had been done. Board of Commissioners v. Wimberly, 55 Ga. 570, and cases cited." Seamans v. King, 79 Ga. 613.

SUPERSEDEAS. "The mooted question as to whether a superseded Judgment can be used for the purpose of supporting a plea of res adJudicata is not raised by this record (2 Black on Judgments, §§510, 685, 846, 882, 960; Watson v. Warnock, 31 Ga. 694 (4); Tommey v. Finney, 45 Ga. 155, 158)...