Wilkowski v. Halle

• Decision Date: 30 June 1868
• Citation: 37 Ga. 678
• Parties: L. Wilkowski, plaintiff in error. vs. Abraham Halle, defendant in error.
• Court: Georgia Supreme Court

37 Ga. 678

L. Wilkowski, plaintiff in error. vs. Abraham Halle, defendant in error.

Supreme Court of the State of Georgia

JUNE TERM, 1868.

Attachment and claim. Tried before Judge Cole. Bibb Superior Court. November Term, 1867.

Brummer was a merchant in Macon. He owed Halle $3,500 00, and he came to Macon to collect his money. Soon afterwards, Wilkowski, of Wilkowski & Co., of Cincinnati, Ohio, came also, and in consideration of the settlement of claims against Brummer, held by his firm, and Lock-hart & Ireland, of Cincinnati, and others whom he represented, he procured Brummer to sell out to him, his entire stock of goods, and took possession of the same.

Brummer then left Macon. Thereupon Halle employed Washington Poe and Henry C. Day, attorneys at law, and partners under the firm name and style of W. Poe, to collect his said claim. He sued out an attachment against Brummer. The affidavit was made before said Day, as a Notary Public, and he witnessed the bond, and issued the attachment. The stock of goods, in Wilkowski's possession, was levied on, and he claimed them.

Before the trial, Halle had procured the testimony of certain persons, to the effect that the claims held by Wilkowski against Brummer were spurious, and gotten up as a cover for a fraudulent transfer of said goods, to him by Brummer, so as to defeat Halle. When the cause was reached, the claimant's attorneys moved to continue the case, in order to get the testimony of Lockhart & Ireland, to show that Brummer did owe them, and that Wilkowski did represent them in collecting their claims. It was shown that Cincinnati, Ohio, was their residence, that about two weeks before Court, interrogations were sent there to them, that upon being advised that they were in New York, the claimant's attorneys ordered the interrogatories sent to New York, or held for the return of the witnesses to Cincinnati, which was the most expeditious, etc.

It being conceded, that Cincinnati was more than five hundred miles from Macon, and the showing being objected to, because the interrogatories were taken out so late, the Court held that the interrogatories should have been taken out according to the rule of Court, three months before Court and refused the continuance. When the jury had been empannelled, claimant's attorneys moved to dismiss the attachment, because the same was issued by said Day, one of the plaintiff's attorneys. The Court overruled the objection, and ordered the case to proceed. Testimony pro and con was introduced, touching the bona fides of the sale to claim-ant, and the jury found the property subject to the attachment.

Claimant assigns as error, the refusal of said continuance, and the refusal to dismiss said attachment.

Lyon & deGraffenreid, for plaintiffs in error.

W. Poe, for defendants in error.

Walker, J.

1. All applications for continuances, are addressed to the sound legal, discretion of the Court, and if not expressly provided for, shall be granted or refused, as the ends of justice may require. Code, sec. 3480. In this case, there was no such abuse of the discretion of the Court below, as to require this Court to control the exercise of that discretion.

2. Was the process of attachment founded upon an affidavit taken by a Notary Public, employed in the cause, and issued by him, void? By the old law, a Notary Public was not empowered to issue an attachment. This power was conferred on him by the Act of March 4th, 1856; pamp. Acts, p. 25; and this act was embodied in the Code, sec. 3200. Section 2201 provides that the party seeking the attachment, before the same issues, shall give bond, with good security, conditioned to pay the defendant all damages that he may sustain, and all costs that may be incurred by him, in the event that plaintiff shall fail to recover in said case; "which bond, it shall be the duty of the magistrate or other officer before whom the affidavit is made, to take."

Shall the attorney of the plaintiff take this bond, which the law provides for the defendant's security, against a wrongful issuing of the attachment? Shall the plaintiff's attorney be the judge as to the sufficiency of the bond, to protect the opposite party and as to the solvency of the surety? Is not this, at least, a quasi judicial proceeding? The officer, taking the affidavit, is in duty bound to take the bond, to decide upon its sufficiency, its legality, and its solvency. Does not this duty come within the prohibitions of sec. 193, Rev. Code, which says: "No judge or justice of any Court, no ordinary, justice of the peace, nor presiding officer of any inferior judicature, or commissioner, can sit in any cause or proceeding, in which he is pecuniarily interested, or related to either party, within the fourth degree of consanguinity, or affinity, nor in which he has been counsel, without the consent of all the parties in interest." Is not the taking of the affidavit of the plaintiff, and bond to indemnify the defendant against damaged and costs, " a proceeding, " in which the attorney for the plaintiff, in this case, " sits?" He decides upon these things.

Again, by sec. 443, Rev. Code, attorneys have certain powers therein specified, " but they cannot take affidavits required of their clients, unless specially permitted by law." Now, the technical meaning of the phrase, " take...