Roberts v. Keeler
| Decision Date | 10 July 1900 |
| Citation | 36 S.E. 617,111 Ga. 181 |
| Parties | ROBERTS v. KEELER. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Suing out a money rule against a levying officer is, in effect, the bringing of a suit or civil action against him.
2. A levying officer may show, as an excuse for not making the money on an execution placed in his hands, that the same has been paid.
3. Issuing a rule nisi against the officer is not an adjudication that there is probable cause for suing out the same, when the petition for the rule does not truly set forth the facts.
4. That the costs upon a fi. fa. have not been paid will not justify the institution of a rule against the officer for the principal and interest as well, when the plaintiff in execution has himself received payment of the principal and interest, and therefore knows the officer is not liable therefor.
5. The evidence in this case fully warranted the jury in finding that the rules against the constable were sued out maliciously, without probable cause, and solely for the purpose of annoying the officer and putting him to trouble and expense.
6. A general complaint, in a motion for a new trial, that the verdict is "contrary to law," is not a special assignment of error; nor does such an assignment authorize the supreme court, at the instance of one against whom a verdict was rendered in the trial court, to pass upon the question whether or not the plaintiff's petition was good as against a general demurrer. (a) The question whether the bringing of a civil action maliciously and without probable cause affords ground for instituting against the plaintiff a suit for damages is not made in the present case, and therefore is not decided.
Error from superior court, Haralson county; C. G. Jones, Judge.
Action by one Keeler against one Roberts for maliciously ruling plaintiff, a constable, to show cause why he had not made the money on certain executions placed in his hands for collection. From a judgment in favor of plaintiff, defendant brings error. Affirmed.
J. S Roberts and Edwards & Ault, for plaintiff in error.
E. S. & G. D. Griffith and W. R. Hutcheson, for defendant in error.
The plaintiff below, Keeler, who was a constable, brought an action for damages against Roberts, alleging in his petition that the defendant maliciously and without probable cause instituted against him in a justice's court five rules requiring him to show cause why he had not made the money on certain executions which had been placed in his hands for collection. There was no demurrer to the petition, but the case went to trial on its merits, and a verdict in favor of the plaintiff was returned. The case is here at the instance of the defendant, whose assignments of error have been disposed of by the rulings above announced.
1. One of the contentions of the plaintiff in error is: "That the rules nisi issued by the magistrate, *** and which were the foundation of the proceedings, were not suits instituted by the defendant, Roberts, but were rules by a court of law calling on the executing officer to show cause why he should not be punished as for a contempt for a failure to perform his official duty." We are unable to conjecture why the institution of such a rule may not be regarded as a suit. In a broad and general sense, it is certainly an action by the movant of the rule against the respondent thereto. It is a proceeding in a court by one person against another, whereby the former seeks to obtain against the latter a judgment for money, and the right to enforce the collection of the same by attachment. The defendant is, to all intents and purposes placed in the position of being "sued." The mere fact that the magistrate issued the rule does not make it the court's case, rather than that of the movant, for he is as much responsible for the institution of the proceedings as is the plaintiff in an ordinary action for the filing of the petition by which it is begun. The difference is merely in the form of process prayed for in order to compel the defendant to appear in court and answer the plaintiff's complaint.
2. It appeared at the trial that one of the reasons set up by the constable for his failure to make the money on some of the executions was that the same had been paid, and that Roberts knew this to be so when he instituted the rules. In this connection, execution is taken to the refusal of the court to give in charge to the jury the following request presented in writing by counsel for the defendant: "If a fi. fa regularly issued by a justice of the peace has been placed in the hands of a constable, it is his duty to execute same by a levy on the defendant's property, and he cannot excuse himself for a failure to do so by setting up a defense thereto in favor of such defendant." Clearly, in view of the issue involved in the present case, this request would have had a decided tendency to mislead the jury; and, moreover, it was not at all applicable. Surely, it cannot be doubted that a levying officer may show, as an excuse for not making the money on an execution placed in his hands, that the same has been paid. Wheeler v. Thomas, 57 Ga. 161 . If the court had given the request above quoted, it would have been, in effect, instructing the jury to the contrary.
3. Another contention of the plaintiff in error is that the fact that the magistrate granted rules nisi against the constable amounted to an adjudication that Roberts had probable cause for instituting the rules. In support of this contention the case of Short v. Spragins, 104 Ga. 628, 30 S.E. 810, is cited. In that case it was held that the sanctioning of an equitable petition, and the granting of a restraining order, by a judge of the superior court, afforded conclusive evidence of probable cause for the bringing of the action, if the petition "fairly and honestly set forth the facts relied upon by the plaintiffs therein." But the principle thus announced has no application to the present case, for the reason that it affirmatively appeared at the trial that the allegations in the petitions for the rules which Roberts presented to the magistrate were not true.
4. Error is assigned upon the refusal of the court to charge as follows: "If suit is pending or judgment has been obtained, and a settlement of the principal and...
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