Sciple v. Northcutt

• Decision Date: 31 August 1878
• Citation: 62 Ga. 42
• Parties: Sciple. v. Northcutt.
• Court: Georgia Supreme Court

62 Ga. 42

Sciple. v. Northcutt.

Supreme Court of the State of Georgia

(August Term, 1878.)

Evidence. Practice in the Superior Court. Admissions. New Trial. Before Judge McCutchen. Bartow Superior Court. November Adjourned Term, 1877.

On September 25, 1871, Northcutt recovered a judgment against Sciple for $750.00 principal, with interest and costs. Sciple held Hooper's receipt, who was the plaintiff's attorney, for $650 00 on this claim, dated on the day after the judgment. Execution was issued for the entire amount, and Sciple paid up the balance over the $650.00, and filed an affidavit of illegality alleging payment. The sole issue, therefore, presented for determination was whether the aforesaid receipt for $650.00 was binding on the plaintiff.

For the purpose of showing that the payment was not made in money, plaintiff introduced in evidence a bill filed by defendant against plaintiff and his attorney, Hooper, to enjoin the execution now in controversy, in which defendant charged that he paid Hooper in work and labor for him, under an agreement that he was to have credit therefor on this claim, and that under this agreement the receipt was given. The bill was sworn to.

To this testimony defendant objected, unless accompanied by a sworn amendment subsequently filed. The court overruled the objection. Counsel then agreed that the bill, amendment and answers, should all go the jury.

A verdict was returned in favor of the plaintiff. Whereupon defendant moved for a new trial because of error in the admission of the bill under the circumstances aforesaid, and becauseof newly discovered evidence, embraced in the affidavit of Hooper, to the effect that in 1870, *plaintiff placed in his hands two notes for $750.00 each, against Sciple, for collection; that the first of these notes was paid in stock-logs and * * *. That this was fully ratified by plaintiff and deponent settled with him therefor; that when the second note matured deponent sued it to judgment, and defendant settled the judgment in the same way, deponent giving to him his receipt for about $650.00; that plaintiff looked to deponent for the money, called on him therefor, and he paid him $150 00;that defendant has paid off this judgment in good faith so far as plaintiff is concerned, and it was so understood by plaintiff, who held deponent responsible for the money, but still sought to enforce his judgment.

Numerous affidavits were filed to show that this evidence was newly discovered, etc. It was established that Hooper left the state in the summer or fall of 1875, and that neither defendant nor his counsel knew to what point he had gone, and that defendant had inquired of divers persons to obtain this information and failed. It also appeared that Hooper had two brothers-in-law residing in the county of the litigation, where defendant's counsel lived, and where defendant some few years ago resided periodically, who were informed to what point he had gone, though defendant and his counsel both testified that they did not know of this relationship.

The motion was overruled and defendant excepted.

W. R. Stansell, for plaintiff in error. On admissibility of bill without amendment, Armstrong v.Lewis, present term. Ratification of act of attorney, Code, sees. 2192, 2364. Newly discovered evidence, 31 Ga., 128: 41 Ib., 627.

A. P. Wofford; J. W. Johnson, for defendant.

BLECKLEY, Justice.

1. The bill offered in evidence was the original, not a copy or exemplification, and...