Th0mps0n v. Long

• Decision Date: 30 September 1881
• Citation: 67 Ga. 627
• Parties: Th0mps0n . vs. Hall & Long.
• Court: Georgia Supreme Court

67 Ga. 627

Th0mps0n . vs. Hall & Long.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1881.

Evidence. Pleadings. Bonds. Contracts. Jurisdiction. Equity. Before Judge Clark. City Court of Atlanta. June Term, 1881.

Reported in the decision.

L. E. Bleckley; N. J. Hammnod, for plaintiff in error.

John L. Hopkins, for defendants.

Speer, Justice.

Hall & Long brought this suit against Joseph Thompson, as security for Lovejoy, to recover of him the sum of two thousand dollars claimed to be due and payable on a bond. It was alleged that said bond was made and delivered in conformity with an order recited in the bond; and that on the--day of May, 1880, in said superior court, in said cause, a verdict was had for the plaintiffs and a final decree rendered against Lovejoy, the principal for the sum of three thousand and fifty-two dollars and ninety-three cents, with interest for the goods in said Love-joy's possession at the date of filing said bill and not subsequently returned, and for those disposed of by said Lovejoy before said bill was filed, whereby said Thompson became liable to pay petitioners two thousand dollars, which he refused to do.

To this suit Thompson pleaded the general issue, and also that he never made said bond sued upon to Hall & Long, but the bond which he did make was to Hull & Long.

On the trial of the case, plaintiffs introduced Mr. Glenn, who testified, over the objection of defendant's counsel, "the bond was given under the authority of the order of Judge Warner, on the bill filed by Hall & Long vs. Lovejoy, although the obligees of the bond appear to be Hull & Long." To the admission of this evidence defendant below excepted.

The bill of Hall & Long filed in the superior court of Fulton county against Lovejoy "for injunction, relief, etc., and for the appointment of a receiver, " was also tendered in evidence. On said bill was the following order of the chancellor:

"Chambers, April 1st, 1867.

" Read and sanctioned; when the complainants shall have given bond and good security in the sum of four thousand dollars payable to defendant for the eventual condemnation money in this case, then let the state's writ of injunction and subpœna issue, each in the penalty of four thousand dollars, enjoining the defendant from removing or disposing of the goods in the warehouse of Cox & Hill in accordance with the prayer of complainant's bill It is further ordered that defendant enter into bond with good security in the sum of two thousand dollars conditioned to pay the plaintiffs such judgment or decree as shall or may be rendered against them upon the final hearing of this cause, for the goods now in the possession or heretofore disposed of by them, embraced in complainant's bill.

(Signed), Hiram Warner, F. S. C. C. C"

The bond was given in pursuance of the foregoing order by the respondent and Thompson in the sum of two thousand dollars payable to Hall & Long instead of Hall & Long The suit against respondent proceeded to a decree. The jury finding that Lovejoy had procured the goods fraudulently, a recovery was had against him for the sum of $3,052.00, with interest.

The bond and record contained in the bill were objected to as evidence, the bond on account of its being payable to Hull & Long, when it was declared on as payable to Hall & Long, and because the order of the chancellor under which the bond was made was void, and because it was not such an order as the chancellor could pass ex parte at chambers, and as an interlocutory proceeding upon the bill and prayer therein contained, and the bond was therefore illegal and void. The court overruled the objections and admitted the bond and record in evidence. A verdict was had for the plaintiffs against Thompson for the amount of the penalty of the bond. Defendant made a motion for a new trial, which was refused by the court and defendant excepted.

The grounds of the motion relied upon before this court were:

(1.) The error of the court in allowing the testimony of Mr. Glenn.

(2.) In admitting in evidence the bond of defendant sued on with the accompanying record of the equity suit.

1. The first question presented is, was it competent for the witness, Mr. Glenn, to show that the bond sued on was the bond given under the order of the chancellor in the equity cause then pending in favor of Hall & Long, the bond offered being payable to Hull & Long.

That this was a mistake in making the bond sued on payable to Hull & Long, instead of Hall & Long, cannot be doubted from the whole of the surrounding circumstances, and that such a mistake is relievable in equity is beyond doubt; and if so, why not at law under our liberal statute, with proper averments? Any mistake consisting of "some unintentional act, or omission, or error, is relievable in equity, " and also now at law. We scarcely regard this an open question in this court. In 25 Ga., 383, it was held that where there was a discrepancy between the debt and mortgage given to secure it, it might be explained by parol proof at law, and the creditor need not be driven into equity for that purpose. So in 26 Ga., 228, where a forthcoming bond was made payable to Jas. B. Shaver in stead of W. B Shaver, it was held that W. B. Shaver might sue at law and show the mistake. So, a promissory note being dated in December and payable 25th December next, it was held that it might be shown by parol that the note was intended to be payable 25th of the same December that it was made. 27 Ga., 54. See also 4...