Early & Lane v. Oliver & Norton

Bleckley, Justice. 1. Why should hearsay as to ordinary matters of fact be evidence on applications for interlocutory remedies, such as injunction and the appointment of a receiver, when such testimony would, under the rules of law, have to be rejected at the final hearing of the cause, and could therefore have no influence on the ultimate result ? And of what use would be the reception, by the chancellor, of affidavits to which he should not look in making up his judgment ? They would be useless lumber, and only swell the volume of papers in the case. In the affidavits rejected, the affiants deposed to nothing of the least materiality, upon their own knowledge; their statements rested on information derived from others. 2. Ample opportunity for full argument is certainly an important right to the parties, and if denied on the main trial of a case, civil or criminal, the denial would furnish sufficient reason, generally, for a new trial. 49 Ga., 255 ; 55 lb., 466; 60 lb., 367. In that stage of litigation, even when the merits are clearly against the losing party, he should have such mental satisfaction as he could derive from having finished his speech. He should not be slaughtered with his address warm in his bosom, alive and undelivered. His case being finally and forever lost, with his argument unheard, he would feel perhaps, and sometimes justly feel? that the outrage of deciding without hearing him was greater, far greater, than the calamity of the adverse decision itself. He might get justice, but with it a wound from the court more painful than any justice which the court could administer; for it is not impossible that a suppressed speech may occasion more mental torture than a lost case. [19] The anguish of having something to say and wanting to say it, of feeling that you have a right to say it, and of being cut off by a peremptory exercise of authority, is, no doubt, intense. Even a child will chafe under it, however inured to the habit of obedience. A suitor accustomed to demand and receive all his rights, and to seeing the like rights of others usually respected, may well protest; and, of course, it is substantially the same to him whether he is silenced personally, or whether the silence is imposed upon his advocate or counsel. Courts are as much bound to abstain from violating rights of practice as rights of principle. The method ordained by law to reach justice is through a trial; and no final trial is full and complete under our system, without the argument of the parties or their counsel, or both, if they choose to exercise the privilege of discussion. So useful is the aid of argument in elucidating the real merits of a controversy and distinguishing the right side from the wrong, that for the sake of its business utility, aside from its bearing on the mental satisfaction of the parties, there is every reason for vindicating the privilege, as a mere privilege, in all final trials. Perhaps, too, the right itself may be hardly less perfect in interlocutory stages of the proceedings, whenever an order is to be made or judgment rendered. We need not now determine whether, in these minor and subordinate matters, it is subject to some discretion or not. In a perfectly clear case, it might possibly be incumbent upon the chancellor to indulge the doomed party and his counsel in “ beating the air,” and hear them as fully as if the interlocutory question under consideration were really debatable; but whether it is or not may be left open for the present. It is certain that the res%ilt itself of an application for an injunction and the appointment of a receiver, is largely a matter of discretion; whereas, generally, the result of final trial is, as far as practicable, governed by strict right. There is thus a wide difference between temporary and permanent defeat — between losing a mere step and faiilng to win the race. The [20] step of injunction and receiver before decree, is collateral rather than direct; it is an effort to collect together and secure the fruits of victory before completing the march and fighting the battle. The propriety of this advance raid into the enemy’s camp under the safe conduct of the chancellor, by a near cut, is for his determination; and his discretion respecting it is broad and ample. He must, it is true, exercise his discretion wisely and not abuse it. Oases there are so clear that not to grant his assistance would be obvious error, and other cases so clear on the opposite side that to grant it would be equally erroneous. Though a high functionary, he is responsible to government, and where it is seen that he has mistaken his duty, he may be corrected. But in a doubtful instance, the result of the application must abide his discretion, and abide it to the end. This being so, when the result reached by him is satisfactory to the reviewing court, as well as to himself, must his discretionary order be reversed, and the interlocutory question be remanded, just to hear an undelivered or the conclusion of an unfinished argument? Suppose there were any number of errors in the means of reaching the decision, after the competent evidence offered was all admitted, and the incompetent all rejected, and that the refusal to adjourn over until Monday was one of them (and it may have been, though we will not say that it was), are we to nullify a sound discretionary order, and a negative one at that, not to correct it, but to correct the improper denial of a motion to adjourn? The argument which the inopportune arrival of Sunday cut short below, has at least, we may believe, been produced before us in all its proportions; and though it was both able and extended, we cannot think that it would or should have been followed by a different judgment if the chancellor had heard every word of it. We are sure, if he had heard it and had stood out against it, we would not have forced him to yield; then, shall we oblige him or some other judge to listen to it by way of experiment to verify its actual effect on a [21] judicial mind other than our own ? Shall we not rather, as it fails to convince us, assume that, though excellent and forcible, it is inherently unconvincing in the face of the evidence in the record ? 3. The judge of the Ocmulgee circuit, in the absence of the judge of the Macon circuit, attended at Macon, where the cause was pending, and heard the evidence, and also the argument so far as he could hear it without encroaching upon the Sabbath or remaining over till a succeeding day. He then returned to his home in his own circuit, and there made up his judgment, reduced it to writing, and sent it to the clerk for record. The law fixes no particular place for these extraordinary remedies in chancery to be acted upon. The whole proceeding might have been had in the Ocmulgee circuit. The judge could, if he had pleased, have declined to meet the parties and their counsel at Macon, and could have held his sitting from beginning to end at Eatonton, or elsewhere in his own circuit. He was acting at chambers, and might open his chambers where it suited him — certainly at any place within either of the two circuits. By opening at Macon, he did not commit himself, irrevocably, to .that location of his official chambers for every part of his action on this case. He might have heard a part of the evidence there, and for good reason, a part elsewhere; or all the evidence there, and the argument elsewhere; and so, we-think, it was allowable for him to hear both the evi.dence and the argument there, and make his judgment at Eatonton. If he had been so disposed, we can see no reason why his judgment might not have been matured and written out in the woods; at least, the writer of this opinion cannot. And when it was ready for the eyes of the parties and the world, all he had to do was to contrive that it should reach the hands of the clerk to be duly recorded. It spoke for itself, and there was no occasion for his presence to promulgate or announce it. 4. We have already indicated that we are satisfied with the decision. True it is, perhaps, that the evidence makes a [22] probable case of fraud, and that the complainants may have an ultimate right to relief; but it makes an equally probable case of solvency on the part of the defendant Douglass. If the facts alleged in the bill on the element of fraud are true, and shall be established at the final hearing, a decree requiring Douglass to disgorge will ensue; and, taking all the evidence into consideration, it seems as probable that such a decree will find him with sufficient fortune to meet it, as that it will be rendered. There is a reasonable probability of his solvency; and the remedy by injunction and receiver, if it should turn out that he did not participate in the fraud of his co-defendants, nor have notice of the same, though he has profited thereby, would prove harsh to him in the extreme. He may be honest, but, if he is not, his apparent solvency is, for the present, average security to these complainants. If appearances grow worse, the application, now refused, may be renewed in the light of any new developments, and then be granted; or if not then available, and no other effective remedy can be found, this will not be a very uncommon experience to those who have done a credit business “ since the war.” The law cannot prevent injustice in every instance. Would that it could. Judgment affirmed.