Thompson v. Wright

..¡By the Court.

Benning, J.

delivering the opinion.

Tn this case, both parties present themselves as plaintiffs in error. There was no necessity for this. It can never be necessary that the successful party should make out a bill of exceptions, and come to this Court as plaintiff in error. As -defendant in error, he can always have the benefit of the grounds which he would put in his bill of exceptions; and that, although the Court below may set no value on those grounds. The judgment of a Court is right, or wrong, in the opinion of a revising Court, according to the facts of the case, as they exist; not according to the lower Courts estimate of those facts. See Toombs vs. Pope, and Pope vs. Toombs, 20. Ga. 763.

In this case the Court below granted a new trial, putting its judgment on some of the grounds contained in the mo- *611 "lion for the new trial, and refusing to put its judgment on ■the others of those grounds.

The general question for this Court may, therefore, be said •to be this; was the Court below right in its estimate of the grounds of the motion ?

The first of these, was, that the Court ruled out the answers of Castleberry and those of Bemis, to interrogatories.

The ground on which the Court went in doing this, was, •that those answers were founded on hearsay; and that this was apparent from the answers themselves.

[1.] We agree, that this ground is good as to the answers .of Castleberry; but we think, that it may, ¡or may not, be good, as to the answers of Bemis. We think, that it does not appear, with certainty, from the answers of Bemis, whether those answers were founded on hearsay or not. We think, ■that those answers leave this question in some doubt, and therefore, we think, that they should have been submitted to the jury, that the jury might determine the question, and according to that determination, regard or disregard the answer. The question was one of fact, and as much one for the jury, ••as it would have been, had the answers been given by the witness under an examination in the presence of the jury.

It is useless to specify the particulars by which, we are led .to these opposite conclusions about the answers of these two witnesses.

We think, then, that this first ground of the motion, was .good, so far as the ground concerned the answers of Bemis; and was not good, so far as it concerned the answers of Castleberry.

The second ground in the motion, was abandoned in this Court by the counsel for the movant. We think, there was nothing in that ground.

As to the third ground, we merely say, that, in our opinion, there was enough in the evidence, to justify the Court in making the charge complained of in that ground.

As to the fourth, we think it true, that the finding was con *612 trary to the evidence, i. e. the finding on the point of residence. We think that the evidence proves beyond a doubt, that John Thompson had removed from Lee county, before the attachment was sued out; and, that when it was sued out, he was residing in Early, or perhaps in Randolph; but, certainly, in one, or the other, of those two counties.

As to the fifth: if the verdict was contrary to the evidence on this point of residence, it was contrary to law. But see what may be said on the next ground which is the last.

As to that ground. The complaint in that ground is, that the verdict was contrary to two of the charges of the Court, viz: -the charge, that if the residence of Jno. Thompson, the defendant in the action,-was at the time of the suing out the attachment, in Early or in Randolph, the jury must find for him; and the charge, that if the jury were satisfied, that the services of Wright, the plaintiff in the action, were rendered for the joint benefit of Robert and John Thompson, they could not find for the plaintiff.

We think it true, that the verdict was contrary to the first of these two charges; but we cannot say, that we think it true, that the verdict was contrary to the second of them. The second of them was hypothetical; and the hypothesis was such, as to leave it optional with the jury to find a verdict for the defendant, according as they might think the fact to be, that the services were rendered for John Thompson alone, or for John Thompson and Robert Thompson, jointly.

If it be true that the verdict was contrary to the first of the two charges, the only question is, was the charge right.

[2.] And we think that it was. The Constitution says, that cases "shall be tried in the county wherein the defendant resides:” and it cannot be, that a case is less a case, because the process in it happens to be extraordinary, rather than ordinary.

Besides the Act of 1810, amendatory of the Act to regulate attachments, says; " and the said defendant or defendants” [in the attachment] "may file his, her, or their defence, *613 to the petition or declaration, of the attaching creditor, or creditors, and enter into the same defence, as if the property attached had been replevied.” Cobb’s Dig. 75.

Now when the property attached has been replevied, the-attachment becomes dissolved; and the case stands -as if it had been founded on ordinary principles. Therefore, when this is so, the case stands subject to any defence that it would, have been subject to, it it had been founded on ordinary process. And it is not disputed, that a case founded on ordinary process, stands subject to the defence, that the defendant resides in another county than that in which the case-, has been brought.

We have thus stated what we think of the estimate put by the Court, on the several grounds contained in the motion for a new trial.

And it appears, that we think that the Court was right in granting the new trial; and also, that we think, that the Court might have put its judgment on another ground, besides the two on which it did put that judgmént, viz: the ground, that it ruled out Bemis’s interrogatories; but that it was right in not putting its judgment on any of the remaining three-grounds.

Judgment, granting new trial, affirmed.