Tarver v. Rankin

• Decision Date: 31 July 1847
• Docket Number: No. 34.,34.
• Citation: 3 Ga. 210
• Parties: Milton J. Tarver, plaintiff in error. vs. Andrew Rankin, defendant in error.
• Court: Georgia Supreme Court

3 Ga. 210

Milton J. Tarver, plaintiff in error. vs. Andrew Rankin, defendant in error.

No. 34.

Supreme Court of the State of Georgia

JULY TERM, 1847.

Certiorari. From Muscogee Inferior to the Superior Court. Tried before Judge Alexander. May Term, 1847.

For the facts of the case, and points made and decided below, see the opinion delivered by the Supreme Court.

Jones, Bennino & Jones, and Hines Holt, for the defendant in error, made the following points:

1. A promissory note is extinguished by a judgment upon it, Story Prom. Notes, sec. 407. A judgment on a note in one State is a good bar to an action on it in another State. Story Conflict sec. 609; Story on Const, secs. 1297 to 1307.

2. A defence which might have been made at law, but was not made, cannot be used even in equity, after judgment at law. Ware vs. Harwood, 14 Ves. 29; Curtis vs. Smallridge, 1 Chan. Cas. 43; Bateman vs. Willoe, 1 Scho. & Lef. 201; 2 Story Eq. secs. 895 a, 896.

3. Parol evidence will not be received to vary a written instrument. Rogers vs. Atkinson, 1 Kelly 18.

4. A receipt of a less sum in discharge of a greater, is no discharge of the greater unless evidenced by a writing under seal. 2 Greenleaf Ev., Accord Satisfaction.

5. In answer to a certiorari, the original on record may be returned, and in some cases must be returned, 1 Tidd 403, 397, according to its exigency.

And also in a writ of error upon diminution alleged, the transcript may be amended in the higher Court by the record of the lower Court, the Clerk of the lower Court attending with the record for that purpose. 1 Tidd 714.

But by our Act of 1788, (Prince 432,) the original bill of exceptions ought to be presented to the Judge, with the petition for certiorari, and therefore ought to be filed with such petition in the Superior Court. At all events such original is no part of the record of the case below, but is first filed above. 2 Tidd 864; Gardner vs. Baillie, 1 Bos. & Pull. 32.

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

Andrew Rankin, the defendant in error, obtained judgment in the Inferior Court of Muscogee County, against Milton J. Tarver, the defendant in error, upon a partnership note given by the firm of Moore & Tarver, for $588 27 principal, $64 interest, and $13 12¹/₂costs. Subsequently Bankin got judgment in the Circuit Court of Russell County, Alabama, against both partners for the same debt. A capias ad satisfaciendum was issued on the Georgia judgment, under which Tarver was arrested, and at the February Term, 1847, of the Inferior Court of Muscogee County, he moved a rule against Rankin, requiring him to show cause why the judgment and ca. sa. against him should not be satisfied, and he set at liberty, upon the ground that he had, on the 1st day of December, 1846, settled the Alabama judgment for the same cause of action. Upon this Rankin took issue, and the same was submitted to a jury. Tarver tendered in evidence the exemplification of the suit in Alabama, for the purpose of showing that it was for the same cause of action. Grigsby E. Thomas, Esquire, was then offered as a witness, and the following receipt exhibited to him:

"Andrew Rankin vs. Moore & Tarver —judgment in Russell Circuit Court. Received of Grigsby E. Thomas three hundred dollars, in full satisfaction of the above stated judgment, this 25th December, 1846, in compromise of the judgment, but not to affect any other. Josephus Echols, Plaintiff's Attorney."

Thomas testified that the foregoing paper had been executed and delivered to him as the agent of Tarver, by said Echols as Rankin's attorney; that the words underscored in the receipt had been added a few days after the same had been given, under the following circumstances: Thomas met Echols and requested himto substitute his name for that of "the defendant, " originally inserted in the body of the instrument, and subjoin "in compromise of the above judgment." Echols took the paper and did as he was requested, but added also, "but not to affect any other." Witness protested against it, but said it could make no difference, as there was no other case. Echols replied that there was another, and that Tarver had been arrested upon it in Muscogee County. That they both might be founded upon the same notes, but that if it were so, he had a legal advantage in the case, and meant to avail himself of it. Witness then said that he would not take the paper upon such terms. Echols answered, that if he would not receive it in its present form, he should not have it at all. Witness then demanded a return of the $300, which Echols refused to surrender. Witness upon reflection took the receipt. Tarver next proved that Echols was the attorney of Rankin in both suits, and closed his testimony. None was introduced by Rankin.

Rankin objected to the exemplification from Alabama, and being overruled, he excepted to the decision. He requested the Court to charge the jury that the testimony of Thomas explanatory of the receipt, was inadmissible, which the Court refusing to do, he excepted. He prayed the Court to charge the jury that the receipt of a sum of money in payment of the judgment, less than the whole amount thereof, was no satisfaction of the judgment, unless the same was evidenced by writing under seal, or of record. The Court refused to give the instructions as asked, whereupon Rankin by his counsel excepted.

The jury found for Tarver, and the Court thereupon ordered the judgment and ca. sa. to be entered satisfied. Rankin sued out a writ of certiorari upon the several exceptions herein before set forth. At May Term, 1847, of Muscogee Superior Court, Judge Alexander presiding, the certiorari came on to be heard, when Tarver suggested a diminution of the record, in this, that the Clerk of the Inferior Court had not, as directed by the statute, certified in the transcript sent up by him, the exceptions which were tendered in the Inferior Court. Judge Alexander overruled this suggestion, whereupon Tarver by his counsel excepted.

Tarver then refused to join issue upon the assignment of errors, as tendered him by Rankin, upon the ground that the record as certified by the Clerk of the Inferior Court, did not authorize the said assignment. But the Court held that the assignment was regular; whereupon Tarver excepted.

Issue was then taken on said assignment, and after argument, the Circuit Court adjudged that the certiorari should be sustained upon all of the grounds therein taken, to wit:

1st. That the Inferior Court erred in permitting the paper purporting to be an exemplification from the Circuit Court of Russell County, Alabama, to be read in evidence.

2d. In refusing to charge the jury, that the testimony of Grigsby E. Thomas was inadmissible for the purpose of explaining the receipt given to witness by Echols as the attorney of Rankin.

3d. In refusing to charge, that the acceptance by plaintiff in judgment from the defendant of a sum of money less than the amount of said judgment, although purporting to be in full satisfaction thereof, was nevertheless no discharge, unless evidenced by a writing under seal, or of record.

And to the rulings of the Court upon these points, exceptions were taken, and on these the questions for our consideration arise.

The plaintiff in error asks a reversal of those judgments below, both on account of his own application to arrest the certiorari being refused, and the Circuit Court having sustained said certiorari on each of the grounds therein taken.

A bill of exceptions is an appeal from the judgment or [1.] direction of an inferior court. It is founded on matter of law, or on a point of law arising out of a matter of fact not denied, as for example, as to the competency of witnesses, the admissibility of evidence, overruling a challenge, refusing a demurrer to evidence, &c. On tendering the bill, if the exceptions therein are truly stated, the judges ought to set their seals, in testimony that such exceptions were taken at the trial. In England this is done under the authority of 13 Edw. I. c. 31. The present proceeding is under the 54th section of the Judiciary Act of 1799. Prince 432. If the bill contain matter false, or untruly stated, or matters wherein the party was not overruled, the judges of course are not obliged to affix their seals; for that would be to command them to attest a falsity. If the bill be returned "quod non ita est, " the party may have an action against the judge for a false return. After the seal of the judge has been affixed thereto, the truth of the matters therein contained cannot afterwards be called in question. A writ of error or certiorari is next brought, to remove the proceedings from the inferior to the higher court. The bill of exceptions is no part of the record below, until acted upon in, and sent back from, the Appellate Court. The original, therefore, is to be sent uptogether with the transcript of the record, as constituting the proceedings in the cause below. And this is to De done by the Clerk of the Court below; and nothing can be examined by the Appellate Court except what is transmitted in this way.

I have made these general observations upon the first two grounds taken by Tarver in his bill of exceptions, esteeming it of importance for the sake of harmony and the proper administration of the law, that right rules should be established in regard to the correspondence and communication, between courts for the correction of errors and inferior tribunals. As it is always, however, more satisfactory to have a determination upon the merits, I leave these matters of form, and proceed to examine the decision upon the certiorari.

And the main question to be considered here is, whether Rankin, having distinct judgments for the same debt, one in Georgia, against Milton J. Tarver, and the other in Alabama, against Moore & Tarver, shall have satisfaction of both, or whether the payment of one shall extinguish the other?

Where there are distinct judgments against...