Melson v. Dickson

• Decision Date: 30 September 1879
• Citation: 63 Ga. 682
• Parties: Melson. v. Dickson.
• Court: Georgia Supreme Court

63 Ga. 682

Melson. v. Dickson.

Supreme Court of the State of Georgia

(September Term, 1879.)

Jurors. Attorney and client. Set-off. Actions. Pleadings. Before Judge Buchanan. Coweta Superior Court. March Term, 1879.

Dickson brought an action of trespass quare clausum fregit against Melson. Defendant pleaded as follows:

(1.) The general issue.

(2.) The he was the owner of the premises and had a right to enter. That the different counts of the declaration referred to the same transaction, which was this: Plaintiff was a tenant of defendant on the premises, and agreed to pay him $600.00 on November 1st, 1875, as rent from September 1st, 1874, to the close of the year 1875. This he failed to do, and defendant sued out a warrant to dispossess him. He failed to give any bond and stop the proceeding according to law. Defendant was ac-cordingly put in possession, and of course received the crops, cultivated them to maturity, and used them when gathered.

(3.) Set-off of certain personalty in possession of plaintiff belonging to defendant, which the former had appropriated and refused to deliver up.

(4.) Set-off, because of the entry by plaintiff on the place, pending defendant's possession, and the carrying away by him of part of the crop and certain other personalty.

(5.) Set off of two notes held by defendant against plaintiff. This plea alleged that plaintiff was utterly insolvent and unable to respond to any separate judgment which might be obtained against him; it therefore prayed that these claims be allowed as a set-off.

On motion the court struck all the pleas which sought to set off matters arising ex contractu, and from damage to or conversion of personal property.

*On the trial, the following facts appeared: On August 24th, 1870, Freeman, who then owned the land involved in this suit, made a bond for titles to plaintiff (Dickson); part of the purchase money was paid and the balance was not. Defendant (Melson) was a creditor of plaintiff, and was pressing him for payment. A settlement was arrived at by which plaintiff assigned to defendant the bond for titles from Freeman, on September 1st, 1874. On the same day defendant received from plaintiff a rent note for the place for $600.00, due November 1st, 1875, and certain purchase money notes, and gave him a bond to make a title to him upon payment of such purchase money notes. It is two of these three notes which defendant pleaded as a set-off. Defendant paid the balance due Freeman and took a deed from him on January 8th, 1875. In 1876 defendant sued out a warrant to dispossess plaintiff, and upon his failing to give bond as provided by law, he was dispossessed, and defendant received possession. He took entire charge of the place, gathered the crops and used them.

Plaintiff insisted that he was not a tenant of defendant, but a purchaser of the place; that he was unable to give bond, and that his eviction was a trespass. The rent note for $600.00 he explained by saying that it was merely a ruse adopted by him and defendant for the purpose of keeping off other creditors who would otherwise interfere with his crop, in order that he might, under cover of this claim, gather his crop and pay defendant; he denied that any rent was due, or that the note was bona Me. On these points the evidence was in direct conflict.

There was much other conflicting evidence as to values, etc., not material here.

The jury found for plaintiff $512.50. Defendant moved for a new trial, on the following, among other grounds:

(1.) Because the court refused to strike the names of four persons from the traverse jury from which the jury that tried said case was taken, for cause, it being shown that two ofsaid jurymen were brothers to two of plaintiff\'s attorneys, *one a first cousin, and one an uncle of the wife of one of said attorneys. Defendant averred, and offered to show, that said attorneys were interested in the event of the suit, and were to have a part of the money recovered as a fee, and nothing if they failed to recover. The court refused to allow said showing to be made, and defendant exhausted four of his strikes on said jurymen.

(2.) Because the court struck the pleas of set-off.

(3.) Because the court refused to non-suit the plaintiff on motion of defendant's counsel.

(4.) Because the verdict was contrary to law and the evidence.

The motion was overruled, and defendant excepted.

L. R. Ray; Samuel Freeman; J. K. Boon, for plaintiff in error.

Davis & Brewster; Jno. S. Bigby, for defendant.

Jackson, Justice.

This was an action of trespass quare clausum fregit, where the jury found for the plaintiff, and the defendant moved for a new trial, which was refused, and he excepted.

1. The brothers and cousins of the counsel, whose contract entitled them to part of the recovery, and who, under our Code, have a lien for their fees on the suit and the judgment, should have been stricken for cause. Under the English law no such fees are allowed to counsel, and therefore kinsmen of the counsel are not incompetent jurors. Hence the dictum in Bacon's Abridgment. 5 Bacon's Abridg. title, Juries, p. 354. But in our state the law is totally changed, and the reason and spirit of the dictum ceasing, it has no authority here. They were as much interested and as partial as if of kin to the plaintiff himself, if the fee were half the recovery, and probably it was; at all events, they were not omni exceptione majores if the fee were any part ofthe recovery; and this it was proposed to prove.

*The defendant had the right to a panel of twenty-four from which to strike—all twenty-four impartial men. 7 Ga., 139; 15 Ga., 39; Ga., 145. He was denied this right and was forced to exhaust four strikes upon two brothers and two cousins of the opposing parties who had an interest, a pecuniary interest, in the verdict and judgment they were pressing to obtain. The denial was erroneous and hurtful. A big part of the battle is the selection of the jury, and an impartial jury is the coner-stone of the fairness of trial by jury.

2. The Code provides that a tort may be set off against a tort, and we have so held. Code, § 3261; Ingram v. Jordan, 55 Ga., 356: 59 Ga., 610. This suit is for a tort; the plea which was stricken is for the conversion of personal property, equivalent to trover in the old form, or the statutory remedy in our Code....