Walker v. Bryant
| Decision Date | 19 December 1900 |
| Citation | 37 S.E. 749,112 Ga. 412 |
| Parties | WALKER v. BRYANT. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. There is no law for traversing in the supreme court the truth of an affidavit made for the purpose of carrying up a case in forma pauperis. (a) One who knowingly, willfully, and falsely makes such an affidavit is, however, subject to a criminal prosecution. (b) The practice of recklessly making such affidavits condemned.
2. An admission in an answer to an action upon a promissory note when in other respects sufficient to entitle the defendant to open and conclude, is not rendered ineffectual for this purpose because it is followed by a general denial of indebtedness upon the note.
3. When, in defense to an action by a vendor against a vendee of land for an alleged balance of the purchase money, the defendant sought to defeat a recovery against himself, and to obtain a judgment against the plaintiff, on the grounds that the sale was by the acre, that there was a deficiency in the number of acres bargained for, and that the defendant had paid to the plaintiff more than the land actually delivered came to at the contract price, it was not material whether representations as to the quantity of the land, made by the vendor to the vendee for the purpose of inducing him to purchase, were bona fide or fraudulent; nor was so much of section 3542 of the Civil Code as relates to sales of land "by the tract or entire body" applicable.
4. Evidence as to the character and value of land belonging to the plaintiff, and adjoining that sold to the defendant, was not, in the trial of such a case, relevant.
5. Where a bond for title recited that the obligor had sold to the obligee a definitely described lot of land, containing a specified number of acres, "more or less," for a designated sum, parol evidence was not admissible to show that the sale of the land was "by the acre," and not "by the tract."
6. The verdict, under the law and the evidence, was more favorable to the plaintiff in error than he was entitled to, and therefore he had no right to complain of it, or of rulings which, though erroneous, did not operate to his prejudice.
Error from city court, Floyd county; John H. Reece, Judge.
Action by W. J. Walker against T. F. Bryant. From the judgment Walker brings error. Affirmed.
M. B. Eubanks and G. A. H. Harris & Son, for plaintiff in error.
J. Branham and Lipscomb & Willingham, for defendant in error.
1. A motion was made to dismiss the writ of error on the ground that the case had been "brought here on a pauper affidavit," when, as matter of fact, the plaintiff in error was not unable, from poverty, to pay the costs. In support of this motion counsel for defendant in error tendered a certified copy of the returns for taxes made by the plaintiff in error for the present year, showing that he had at least $1,840 worth of property, and also insisted that the facts disclosed by the record made it clear that he could not honestly have taken the pauper oath. We cannot, of course, consider the evidence afforded by the transcript of the tax returns. There is no law which authorizes us to do so. As to the facts appearing in the record, we can only say that they do most strongly indicate that the plaintiff in error is a man of means, and that he ought not to have sworn that he was unable, from poverty, to pay the costs. Be this as it may, we cannot sustain the motion to dismiss. Paragraph 1, § 21, art. 6, of the constitution reads as follows: Civ. Code, § 5881. The filing of "the usual pauper oath" in the court below, whether the affiant takes this oath conscientiously or corruptly, ends the matter, so far as this court is concerned. It has no authority to inquire into the truthfulness or good faith of the affidavit. The only remedy for an abuse of this provision of the fundamental law is a criminal prosecution. It is painfully apparent that the fear of such a prosecution utterly fails to restrain many litigants from swearing falsely for the purpose of saving a few dollars. The justices of this court know with certainty that pauper affidavits have often been made by persons who could not have done so honestly. We say "with certainty" because it is frequently shown beyond doubt on the face of a record that the plaintiff in error was a person of ample means, unquestionably able to pay the costs, and yet swore solemnly he could not do so. It seems to have become a common practice to take this oath merely because the affiant, at the time of so doing, has not in his pocket a sufficient amount of ready cash to pay the costs. We have been unable to shut our eyes to many flagrant instances of human depravity with reference to this matter of making false pauper oaths, but we have no power to correct this great and growing evil. If a party is willing to make a false oath in order to avoid paying costs, and escapes prosecution and punishment for the felony thus committed, we cannot, under existing laws, dismiss his writ of error for nonpayment of costs. About one-third of the cases brought here come up in forma pauperis. So far as relates to honest litigants who are really poor, we have naught to say against the law; but the constant abuse of it by persons who can pay costs, and who corruptly swear they are unable to do so, is certainly deplorable.
2. Before dealing with the case upon its merits, we will first dispose of another question of practice. The action was upon a promissory note. In his answer the defendant admitted the execution of the note and title thereto in the plaintiff. This, under numerous decisions of this court, was sufficient to entitle the defendant to open and conclude. Montgomery v. Hunt, 93 Ga. 480, 31 S.E. 104; Association v Perry, 103 Ga. 800, 30 S.E. 685; Swanson v. Cravens, 105 Ga. 471, 30 S.E. 642; Whitaker v. Arnold, 10 Ga. 857, 36 S.E. 231. The court below nevertheless refused to allow him to do so, its ruling as to this matter being doubtless based upon the fact that the admission above mentioned was followed by a denial that the defendant was "indebted to plaintiff in any sum upon said note." Had the case gone to the jury upon the answer alone, a verdict for the plaintiff would have been demanded, for he would not have been required to submit proof to show that the defendant did owe him the amount apparently due upon the note. After filing such an answer, it was unquestionably incumbent upon the defendant to show by competent evidence that he was not indebted upon the note, and why. This being so, the burden of proof was upon him, and he was accordingly entitled to claim the opening and conclusion. The denial of...
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