Ingram v. Little

By the Court. Benning, J. delivering the opinion. Was the part of the testimony of Scarborough that was admitted, admissible ? And first: Was he interested on the side of the party examining him, Little ? He was interested on the other side. It would have been to his interest, that the motion to vacate the judgment should prevail, against him, among others. Besides the part of his testimony admitted, had relation exclusively to himself and his acts, and not to his co-parties, or to their acts. We think therefore, that under the Act of 1854, for the admission of the testimony of the parties in suits, within certain limits, the part of the testimony of Scarborough admitted, was admissible, unless it was in itself illegal as testimony. Was it in itself illegal as testimony ? This Court had to hold that the testimony was legal, in order to come to the conclusion to which it did come in this case, when the case was last before the Court. This Court then came to the conclusion, that the Court below erred in [425] not continuing the case to enable Little to obtain this very testimony of Scarborough’s. 16. Ga. 195. The argument has now a second time been urged that, as by the Judiciary Act of 1799, the whole proceeding in a case in which there is no process, is void, there can be nothing that will prevent this proceeding from being void; and therefore, that no evidence can be admissible, the object of which is to prevent the proceeding from being held void. And again the Court must withhold its assent from the argument. The question is not solely, if it is all, on the Judiciary Act of 1799 ; it is mainly, if not entirely, on the Act of 1840, to amend the Judiciary diet. The first section of the Act of 1840, is as follows: “ That whenever a defendant or defendants to any suits in law or equity in this State, acknowledges service, and waives process, it shall not be necessary for the clerk to attach a process.” Cobb’s Dig. 363. This act does by no means say in these words, that if parties intend to comply with it, and by mistake or ignorance, fail partly to do so, the whole proceeding shall be void. And the Act of 1818, says, “That in every case where there is a good and legal cause of action, plainly and distinctly set forth in the petition, and there is in substance a copy served on the defendant or defendants or left at their most notorious place of abode, every other objection shall be, on motion, amended without delay or additional costs.” Id. 488. [1.] The Court adheres to the assertion, that the testimony was legal, and therefore holds that it was admissible. The next question is, was the testimony of Ray the clerk, admissible ? To take acknowledgment of service must be within the scope of the duties of clerks under the Act of 1840. And it is a general principle that agents and servants are competent as witnesses to testify about their own acts, done within the scope of their employment, even though they may be subject to liabilities over, unless the verdict goes for the par [426] ty calling them. 1. Green. Ev. 416. The rule makes no exception of public agents. [2.] We think therefore, that Ray was competent as a witness. The ground of objection to this witness’s testimony, that there was higher evidence of his being clerk than his statement to that effect, was not presented in the argument. Was Montfort’s testimony admissible ? That testimony was not such as the Act of 1850, “To regulate the testimony of attorneys at law,” could affect. That act. applies to cases to occur after its. passage. This case occured before its passage. Cobb’s Dig. 280. Nor was it such as ought to have been excluded by the rule which excludes parol evidence that is to operate to vary a writing. The testimony stands in this respect on the same footing with Scarborough’s. The ground of objection to it, that it was drawn out by leading questions was not insisted on in the argument; nor was this ground of objection to Scarborough’s evidence urged. Nor was the testimony such as ought to have been excluded, under the rule which forbids attorneys at law to divulge “confidential communications” made to them by their clients. The testimony disclosed no communication that was entitled to be called a confidential one. Was the evidence sufficient to authorize the Court to render the judgment which it did render, viz: a judgment, first, ordering the clerk to amend the acknowledgment of service by inserting in that acknowledgment, a waiver of process, and secondly, dismissing the motion ? We think so clearly; — especially as we must take into the account, the course and history of the case. Judgment affirmed.