Johnson v. Bemis

• Decision Date: 31 January 1848
• Docket Number: No. 17.,17.
• Citation: 4 Ga. 157
• Parties: Samuel Johnson, plaintiff in error. vs. Charles F. Bemis, defendant in error.
• Court: Georgia Supreme Court

4 Ga. 157

Samuel Johnson, plaintiff in error. vs. Charles F. Bemis, defendant in error.

No. 17.

Supreme Court of the State of Georgia

JANUARY TERM, 1848.

Motion for a new trial, decided by Judge Warren, Early Superior Court, April Term, 1848.

At February Term, 1840, Charles F. Bemis recovered of Samuel Johnson, in the Superior Court of Early county, a judgment for $2,538.74, principal, with interest and costs. At the same Term a rule nisi was granted for a new trial at the instance of the defendant, to be heard at the next Term, on the ground "that "the defendant is unable to give security to enter an appeal, and "that he has a valid and bona fide defence to said action, as set "forth in his affidavit, viz.: that he expects to plead and prove "payment of said pretended debts, if he can have anew trial, and "that such plea was not filed before trial through mistake or over"sight of his counsel, " which rule was ordered to operate as a supersedeas.

At the August Term, 1840, the presiding Judge entered on the motion docket opposite this rule, "Time taken to decide the point, and the decision to be written out by Christmas."

The minutes of the Court showed no further action, but on the 18th May, 1841, at Chambers, the presiding Judge made the following order:

"Charles F. Bemis,

vs.

Samuel Johnson.

Assumpsit and attachment in Early Superior Court. Aug. Term, 1838.

Rule nisi for a new trial. The rule nisi having been refused in the foregoing case, it is ordered that execution issue instanter for the principal, interest and cost due upon said judgment.

William Taylor, J. S. C, S. W. C."

On the 2d June, 1841, the Clerk of said Court issued an execution accordingly.

At April Term, 1847, Samuel Johnson moved a rule against Bemis, the plaintiff below, upon the foregoing facts, to set asideand annul the execution and judgment, on the ground that the judgment was entered up and the execution issued pending the supersedeas.

The Court below refused the motion, and ordered the entry on the motion docket, and the order of the Judge at Chambers entered on the minutes nunc pro tunc, which decisions are now complained of as erroneous.

Sturgis, for plaintiff in error.

Carithers, for defendant.

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

1. The motion in the Court below was to set aside the judgment and execution against the plaintiff in error, because, after granting a rule nisi for a new trial, returnable to the next Term with a supersedeas, the presiding Judge had, in vacation, when there was no order to that effect taken and entered on the minutes, considered and dismissed the rule, and directed the execution to issue. This motion was refused by Judge Warren, and hence this writ of error. We think the motion to set aside the judgment and execution, ought to have prevailed. The order at Chambers to dismiss the rule, and directing the execution to proceed, was irregular and void, and the supersedeas was not for that reason thereby dissolved. The supersedeas was operative until the rule for a new trial was legally disposed of. We have already decided this Question,

We have held, and now hold, that applications for new trials must be made at the Term when the judgment is rendered and entered upon the minutes of the Court. And that rules for new trials may be made returnable in vacation, and then heard and determined, when an order to that effect is taken at the judgment Term and entered upon the minutes, and then only. Grady vs. Hightower, et al., 1 Kelly, 252. In this case there was no order entered on the minutes to hear and determine the rule in vacation—on the contrary, the rule was made returnable in term. It is true that there was an entry on the bench docket, made at the return term of the rule, to the effect that the Judge would take time to consider of it, and write out his opinion by Christmas.

An entry on the bench docket is no part of the recordthat docket we view in the light of a memorandum for the convenience of the Judge and...