The Newton Mfg. v. White

• Decision Date: 31 July 1872
• Citation: 47 Ga. 400
• Court: Georgia Supreme Court
• Parties: THE NEWTON MANUFACTURING COMPANY et al.,plaintiffs in error. v. H. & T. M. WHITE, defendants in error.

47 Ga. 400

THE NEWTON MANUFACTURING COMPANY et al., plaintiffs in error. v. H. & T. M. WHITE, defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1872.)

Injunction. Affidavit f illegality. Practice. Relief Act of 1870.

Tax affidavit. Before Judge Greene. Newton Superior Court. March Term, 1872.

On August 1st, 1871, an execution in favor of H. & T. M. White against the Newton Manufacturing Company, as principal, and William R. Phillips and W. F. Davis, securities on appeal, was levied upon certain lands, with the improvements thereon, situated in the county of Newton, "as the property of defendant." The execution was based on a judgment entered up on September 27th, 1870, for the sum of $3,450 49, besides interests and costs. The defendant, William R. Phillips, on August 11th, 1871, filed an affi-davit of illegality, in which he set forth "that the plaintiffs' judgment, on which the said execution was founded, was based upon a contract, or cause of action, made or implied before June 1st, 1865, and plaintiffs have not attached to said execution an affidavit that all legal taxes chargeable by law on said debt have been paid from the time of making or implying said contract, and that he (defendant) thereby denied that said taxes have been paid." Phillips tendered said affidavit with a bond, as "prescribed by the statute, to the sheriff, who refused to accept the same and suspend the sale of the property levied on as aforesaid. Whereupon, said defendant filed his bill in equity, returnable to the March term, 1872, of Newton Superior Court, in which he prayed that said sale might be enjoined for certain causes therein set forth.

On September 19th, 1872, after notice to the defendants in the bill, the Chancellor, after hearing the answer of defendants and the affidavits submitted by both parties, sanctioned the bill, and ordered an injunction to issue, in the penalty of $3,000 00, until the further order of the Court.

On the morning of the last day of March term, 1872, counsel for H. & T. M. White, called the attention of the Court to said equity cause, and moved that the injunction be dissolved and the bill dismissed. Complainant's counsel were not present, having had no notice of said motion. The Court passed the following order:

"On argument had, it is ordered that the injunction granted in the above cause be dissolved, it appearing that the affidavit filed by W. R. Phillips, as to the payment of taxes, has been received by the sheriff and filed with the fi. fa. in the clerk's office, as required by law. This March 28th, 1872." To which order counsel for complainant excepted.

On the same day the case of H. & T. M. White, plaintiffs in execution, against the Newton Manufacturing Company, as principal, and William R. Phillips and William F. Davis, as securities on appeal, being the affidavit of illegality made by William R. Phillips, was called. The defendants in illegality were neither present in person nor represented by counsel. John J. Floyd, Esq., an attorney of the Court, but not of counsel for defendants, moved to continue the case upon several grounds unnecessary here to be set forth. The motion was overruled and defendants excepted.

The jury returned a verdict for the plaintiffs in execution. The defendants moved for a new trial upon the following among other grounds:

Because the Court erred in charging the jury that "if *they believe from the evidence that the debt arose from a cotton consideration, that is, if the plaintiffs loaned cotton to the defendant, to be returned when called for, there was no cause of action until a demand was made; and if demand was made after June 1st, 1865, then no affidavit of the payment of taxes was necessary, but if not made after June 1st, 1865, they must find for the defendants."

The motion for a new trial was overruled by the Court and plain-tiffs in error excepted and now assign error upon each of the aforesaid rulings.

P. L. Mynatt; John J. Floyd, for plaintiffs in error, submitted the following brief:

Injunction cannot be dissolved except upon rule nisi to show cause: Rule of Superior Court, 46. English practice is practice here: Code, sec. 3045. Must be upon order nisi: 3 Dan. Ch. Pr., 1825; 1 Eden on Inj., 104.

Clark & Pace; A. M. Speer; Peeples & Howell, for defandants.

MONTGOMERY, Judge.

1. Affidavits of illegality are peculiar to our practice, and lie, generally, when under the practice as it existed before the law allowing them, it would have been necessary to file a bill. The sheriff may receive them and return them to the Court having jurisdiction to try the issues made, or if he choose to reject them on his own responsibility, he can, and not unfrequently does do so. In the present case, he elected to reject the affidavit tendered. This left the defendant in fi. fa. to choose which one of his remaining remedies he would rely on: an injunction, or an action against the sheriff. He chose the former, and the Judge granted his application. Had the Court jurisdiction at that time? It is not disputed. Could the defendant in the equity cause, by his own act, deprive the Court of a jurisdiction once acquired? No case and yet that is *what is here attempted. After the granting of the injunction, the sheriff returned the illegality papers, which seem to have remained in his hands, into Court, and then a motion is made to dissolve the injunction on the ground that a Court of law has now...