Weaver v. Carter

• Decision Date: 20 May 1897
• Citation: 28 S.E. 869,101 Ga. 206
• Parties: WEAVER v. CARTER.
• Court: Georgia Supreme Court

28 S.E. 869

101 Ga. 206

WEAVER v. CARTER.

Supreme Court of Georgia

May 20, 1897

Syllabus by the Court.

In the case of Henderson v. Reynolds, 84 Ga. 159, 10 S.E 734, this court decided that there was no legal or moral wrong in receiving on the Sabbath day a verdict which had not been agreed upon until after that day had begun. This decision was rendered after an examination and consideration of the case of Bass v. Irvin, 49 Ga. 436, and it was held that the ruling therein made presented no legal obstacle to the conclusion reached in the case first above mentioned. This conclusion was followed as sound in the case of Bernstein v. Myers, 99 Ga. 90, 24 S.E. 854. Under the authority of the cases in 84 Ga. 159, 10 S.E. 734, and 99 Ga. 90, 24 S.E. 854, it is now held that such a verdict is not unlawful.

Error from superior court, Fannin county; George F. Gober, Judge.

Action by H. Carter against W. Weaver. Judgment for plaintiff. Defendant brings error. Affirmed.

O. R Du Pree and W. H. Terrell, for plaintiff in error.

T. A Brown, for defendant in error.

SIMMONS C.J.

The right of a court to receive a verdict on Sunday, and the legality of such action, are, in my opinion, demonstrated in the case of Henderson v. Reynolds, 84 Ga. 159, 10 S.E. 734, and the authorities there cited. Other decisions might be cited, made since the case above mentioned was decided, but I deem it unnecessary to incumber the records with them. The doctrine seems now to be almost universal in this country. Besides, this court, composed of the writer and Justices Lumpkin and Atkinson, has approved the decision made in the case of Henderson v. Reynolds, by the decision in the case of Bernstein v. Myers, 99 Ga. 90, 24 S.E. 854. It is now contended that, although this court has decided in the two cases mentioned that a verdict can be legally received on the Sabbath day, it is not the law of this state, because the court, in the case of Bass v. Irvin, 49 Ga. 436, decided that a verdict so received was illegal and void, and that this court could not overrule that case without having it reviewed in accordance with section 5588 of the Civil Code, which is as follows: "A decision concurred in by three judges cannot be reversed or materially changed, except by a full bench, and then after argument had, in which the decision, by permission of the court, is expressly questioned and reviewed; and after such argument, the court in its decision shall state distinctly whether it affirms, reverses or changes such decision." This section applied when the decisions in Henderson v. Reynolds and in Bernstein v. Myers were made, and the court was then composed of but three justices. Since the court has been increased to six, the same rule applies, except that it requires five justices to reverse or overrule a previous decision made by a bench of three. So it appears that, at the time of the decision in Henderson v. Reynolds, a prior decision by three justices could not be reversed unless it had been reviewed as required by the above section of the Code. To all of this I fully agree. The decision in Henderson v. Reynolds was made with a full knowledge of this section of the Code. In that decision, Bass v. Irvin was expressly referred to. It was admitted that the reasoning of the court in that case was in conflict with the views announced in Henderson v. Reynolds, as well as in conflict with all the other authorities; but it was said by the court that it was not necessary, in Bass v. Irvin, for the court to have gone as far as it did in its reasoning upon this question. In Bass v. Irvin a verdict was returned upon the wrong paper, and no judgment entered up thereon. A motion was made to transfer the verdict to the proper paper, and to enter up judgment nunc protunc; and a rule nisi was issued, calling upon the defendant to show cause why this motion should not be granted. He showed for cause that no legal verdict was rendered in the case because it had been returned on Sunday, in the absence and without the consent of the defendant. And we said in the case of Henderson v. Reynolds that the decision of this court in Bass v. Irvin was, perhaps, correct; that the trial judge had no right on Sunday, and in the absence and without the consent of one of the parties, to receive the verdict; that the parties had a right to be present when the verdict was received,--and added: "This court, as now constituted, would follow that case, under an exactly similar state of facts, unless we were called upon to review it, but we would not feel bound by all of the reasoning of the decision." Here, then, is a decision of this court, concurred in by three justices, in which it was held that it was not necessary for the court to go on as far as it did in its reasoning upon this question. This was the unanimous judgment of the court, that Bass v. Irvin was not controlling upon the question of the reception of a verdict on Sunday. That decision, whether right or wrong, has the same binding force upon subsequent members of the court as is given any unanimous decision of the court by the above-cited section of the Code. It does not reverse Bass v. Irvin, but simply holds that under the facts of that case it was not necessary to decide what was decided therein.

The course pursued by the court in Henderson v. Reynolds has been, as far as I can ascertain, the one uniformly pursued since the passage of the act of 1858, now codified as section 5588 of the Civil Code. It has been the practice of the court, where a case has been erroneously decided upon a question of law, either to have it reviewed, and then overrule it, or, if the same question arises again under a different state of facts, however small the difference may be, to decide differently, and distinguish the case decided from the previous one, or in some other way to modify or throw doubt upon it. Whenever this has been done, the latter case has been followed by the court and the profession as the true law upon the question. Numerous cases could be cited from our Reports in which this has been done. I will content myself with citing a few of them:

In the case of Roseberry v. Roseberry, 31 Ga. 122, it was held that in the trial of a possessory warrant, if the magistrate decided that the defendant was entitled to the property it should be delivered to him upon his giving bond as the statute required. In the case of Bush v. Rawlins, 89 Ga. 586, 14 S.E. 886, it was held by this court that, where the property was adjudged to be that of the defendant in the possessory warrant, it was not necessary, under the statute, for him to give a bond; and the court, in discussing that question, said: "We are aware that in the headnote to the case of Roseberry v. Roseberry, 31 Ga. 122, a different view is announced; but the facts of that case show that the point was not made in the case, and it was not necessary to decide the question." In the case of Weitman v. Thiot, 64 Ga. 16, this court, in ruling upon the statute of limitations as laid down in section 2928 of the Code of 1882, held that it applied to the estates of debtors as well as creditors. In the case of Pendleton v. Andrews, 70 Ga. 306, the court construed the section differently; and in the case of Johnson v. Johnson, 80 Ga. 260, 5 S.E. 629, the case of Pendleton v. Andrews, supra, was followed,--Bleckley, C.J., saying that the later construction of the section "is undoubtedly correct, and that on which the court acted in ruling Weitman v. Thiot, 64 Ga. 16, is manifestly erroneous." In the case of Banks v. Hunt, 70 Ga. 741, the court held, by way of argument, that, when the wages of a day laborer were garnished, it was the duty of the garnishee to pay the fund into court, and that until this was done the question of exemption would not arise. In the case of Emmons v. Telegraph Co., 80 Ga. 763, 7 S.E. 232, it was held that the employer is not bound to pay the fund into court, but that it is his duty to pay it to the laborer, even though he had been garnished, and that either the laborer or the garnishee could, after the money was paid to the laborer, assert that it was not subject to garnishment. In the case of Hall v. State, 65 Ga. 36, it was decided by this court, in substance, that, whenever confessions are about to be given in as evidence, it is the imperative duty of the judge to send the jury out until the preliminary examination is had, and the admissibility of the evidence passed upon by the court. In the case of Woolfolk v. State, 81 Ga. 564, 8 S.E. 724, this court said that an examination into the Hall Case showed that the question was not there made, and what was said by the court in laying down that rule, was, therefore, obiter. After the decision in the Hall Case, every time the state undertook to prove confessions by the accused, the judge, of his own motion, ordered the jury to retire until he had inquired into the admissibility of the evidence. Since the Woolfolk Case, the judges have adopted the practice there recommended, of exercising their discretion as to whether they would send the jury to their room. The ruling in Woolfolk v. State has been followed by this court since that time.

The reasons given in Thompson v. Spraigue, 69 Ga. 409 for the enactment of the pilotage laws there involved, applied only to cases where the vessel was entering port. In the case of Meissner v. Stein, 72 Ga. 234, a pilot brought a wrecked British vessel into port, where she was sold under a decree in admiralty, refitted by the purchaser, and given a new name and nationality. When she was about to leave port, to put out to sea, the pilot offered his services, and they were declined, whereupon he brought suit. This court decided that, as the purchaser had acquired the vessel freed of all liens, and...