Loewenherz v. Merch.S' & Mech.S' Bank Of Columbus

• Decision Date: 15 January 1916
• Docket Number: (No. 198.)
• Citation: 144 Ga. 556,87 S.E. 778
• Court: Georgia Supreme Court
• Parties: LOEWENHERZ. v. MERCHANTS' & MECHANICS' BANK OF COLUMBUS.

87 S.E. 778

144 Ga. 556

LOEWENHERZ.

v.MERCHANTS' & MECHANICS' BANK OF COLUMBUS.

(No. 198.)

Supreme Court of Georgia.

Jan. 15, 1916.

(Syllabus by the Court.)

Error from Superior Court, Muscogee County; L. C. Slade, Judge.

Claim case by L. Loewenherz against the Merchants' & Mechanics' Bank of Columbus. Judgment for the bank, and claimant brings error. Reversed.

A. fi. fa. in favor of Merchants' & Mechanics' Bank against H. M. Mooty was levied upon certain real estate in the city of Columbus, as the property of the defendant in fi. fa., and Leo Loewenherz interposed his claim to the property. When the case came on for trial the plaintiff tendered issue, and set up specifically certain grounds upon which it claimed the property was subject. They were in substance as follows: First, that while the defendant in fi. fa. had executed a deed of conveyance to the claimant, the former at the date of the conveyance was indebted to the plaintiff in the sum of $400, besides interest, which debt was the foundation of the judgment upon which the execution levied was based, and the deed from the defendant in fi. fa. to the claimant was without consideration and merely a voluntary deed. Second, that the deed was executed by the defendant in fi. fa. under coercion and to prevent the prosecution of him for em bezzlement. Third, that the defendant in fi. fa. conveyed to the claimant all other lands of which he was seised and possessed, thereby rendering himself insolvent; and that the deeds of conveyance were made with intention to delay or defraud creditors, the claimant knowing of the intention with which they were executed. Fourth, that at the time of the execution of the deeds the defendant in fi. fa. reserved a benefit to himself. On the trial the jury returned a verdict for the plaintiff. A motion for a new trial, made by the claimant, was overruled, and he excepted.

During the trial the court admitted in evidence, over objections duly made, certified copies of two documents, as follows:

"In re L. Loewenherz. Attachment for Contempt.

"It appearing to the court that the grand jury at this the May term, 1913, of Muscogee superior court, has pending before them the investigation of the case of State v. H. M. Mooty, charged with the offense of larceny after trust; and it further appearing that L. Loewenherz has been called before said body and duly sworn as a witness in behalf of the state in said case therein pending; and it further appearing that the following questions have been propounded to the said Loewenherz by the solicitor general of this court; and it further appearing that said Loewenherz refuses and declines to answer said questions, to wit: Q. Has the said H. M. Mooty appropriated, without your knowledge and consent, to his own use, moneys belonging to you, which were intrusted to him by you, as your clerk and bookkeeper? If so, how much and what amount has the said Mooty appropriated to his own use?

"Therefore, it is considered, ordered, and adjudged that a copy of this rule be served upon said L. Loewenherz instanter by the sheriff of this court; and that the said L. Loewenherz show cause before me at superior court room, Muscogee county, on the 29th day of May, 1913, at 9 o'clock, why he should not be punished for his contempt of court. Given under my hand, this 28th day of May, 1913.

"S. P. Gilbert, Judge S. C, C. C."

"In re L. Loewenherz. Attachment for Contempt.

"In Muscogee Superior Court, May Term, 1913.

"Now comes L. Loewenherz, and, in response to the rule nisi to show cause before his honor S. P. Gilbert, Judge S. C, C. C, why respondent should not be punished for contempt of court, says:

"First. He should not be punished for contempt of court, for the reason that he, respondent, has not been and is not guilty of any contempt of court.

"Second. Respondent says that if he had answered the questions set forth in the rule nisi that he might have disclosed a fact which forms a necessary and essential link in the chain of testimony which would tend to criminate himself, respondent, and which might be sufficient, taken in connection with other evidence, to convict him of a crime, and he cannot answer said questions without accusing himself.

"Third. Respondent says to have answered said questions might have criminated and tended to criminate himself, and would have tended to have brought disgrace and public contempt upon himself; and under section 4554 of the Civil Code of Georgia of 1910, and under paragraph 3 of section 1037 of the Penal Code of Georgia of 1910, and under article 1, § 1, par. 6, of the Constitution of Georgia, and under article 5 of article 8 of the Constitution of the United States of America, he had a right to decline to answer each and both of said questions; and for these reasons he did decline and refuse to answer said questions.

"Wherefore, having fully answered, respondent prays to be discharged.

"A. W. Cozart,

"Attorney for Res...