Stewart, Dunholter & Co. v. Sholl

Atkinson, Justice. The facts are stated in the official report. 1. By the act of the General Assembly approved December 20th, 1890 (Acts 1890-91, vol. 1, p. 108), it is made the duty of the clerk of the superior court of each county to keep an attachment docket in which he is required to enter the names of plaintiff and defendant in! , attachment, the court to which it is returnable, the amount claimed, the day and hour of levy, and a brief general description of the property levied upon; and the lien of an attachment thus entered is protected against a transfer of the property levied on by the defendant in attachment, or the creation of any lien thereon by him. The question is, whether the clerk of the superior court must, in the absence of a request to so enter an attachment levied and filed with him, enter it upon the docket in response to the duty imposed by the statute. "We think he must. The law imposes upon him this duty for the protection of plaintiffs suing out attachments. Its performance is not left to — 536 — his discretion, nor is it made dependent upon a direc'tion. from the parties at interest that he comply with this plain mandate of the law. The statute is itself imperative, and if he neglect the duty thus imposed, and another by reason, of his failure to perform it suffers injury, the person injured may recover against the clerk and the sureties on his-official bond. It is for the protection of the general public against such omissions of duty that the official bond is-required, and in so far as the judgment of the lower court denied to the plaintiffs the right of recovery because of a failure upon their part to request the clerk to perform this-duty, -the judgment was necessarily erroneous. 2. It was urged, that even though the defendant neglected to perform the duty above referred to, the plaintiffs were notwithstanding not entitled to recover, because of the fact that the judgment, the lien of which was alleged to have been lost by reason of the misfeasance of the clerk, was void, it having been rendered by the court without the intervention of a jury; and that for 'this reason it created no lien upon the property of the defendant, and as a consequence the plaintiffs sustained no injury. It appears from the record in this case, that the plaintiffs in the court below, having recovered a judgment in the State of Tennessee against one Nock, caused an attachment to issue thereon and to be levied upon the property of the defendant in the foreign judgment, said property so levied upon being situated in the State of Georgia. A declaration was duly filed declaring upon the judgment rendered in the State of Tennessee, and upon the trial of that cause-the court awarded judgment without the intervention of a. jury. It was insisted that the foreign judgment was not an unconditional contract in writing, and -that theref ore the court- had no authority to render judgment thereon without the intervention of a jury. It was the purpose of the constitution of this State, paragraph 1, section 18, article 6, to preserve the right of trial — 537 — by jury as it stood at tbe time of tbe adoption of that constitution, except as therein specially provided. One of the exceptions specially provided was in favor of the rendition of judgments by the court without the intervention of a jury upon unconditional contracts in writing. It was the purpose of this constitutional provision to preserve this right as it then stood, not to extend the right of trial by jury beyond the limits of that right as it existed prior to its adoption. It will be borne in mind that this provision did not make its first appearance in the present constitution. A similar one appears in each of the several constitutions of the State of Georgia adopted prior to that of 1877. It came to us from the declarations of Magna, Charta, and has stood as a constant expression of the public mind in favor of the preservation unimpaired of this great bulwark of civil liberty. The limitations upon this right are to be found in the common law, and except only in so far as it has been modified by the constitution, it remains of force in this State to the same extent only as it existed at common law. To preserve the right of trial by jury so that it shall remain “inviolate” is one. thing; to extend it to cases in which jury trials were never allowed, according to the ancient practice which prevailed at common law, is entirely a different thing; so that where jury trials are neither specially enjoined nor prohibited by the constitution of this State, in order to determine whether in a given case a jury trial may be demanded, we must have recourse to the common law. It was insisted upon the argument here that a foreign judgment was not an unconditional contract within the meaning of that term as employed in the constitution of this State, and that therefore it did not fall within that class of cases in which the court was authorized to render a judgment without the intervention of a jury. We do not desire to enter upon a discussion of the doubtful question as to whether a judgment of a court of record can be properly classed as a contract or — 538 — not; but we prefer to rest our conclusion against tbe contention of the defendants in the court below upon the broader ground, that as to suits upon judgments of courts ■of record, where no defense is filed which calls in question the validity of the judgment, the right of trial by jury does not and has never existed as matter of law. It appears from the record that no plea presenting an issuable matter •of fact was filed to this suit. It is a mistake to suppose that in this State the right of trial by jury extends to all cases, or that the verdict of a jury is a necessary and indispensable predicate to the rendition of a judgment. The office of a jury is to determine disputed matters of fact, and if there be no matter of fact in dispute, there is nothing upon which the court is at liberty to invoke the finding of the jury. At common law there were many methods of determining ■disputed rights; trial by wager of battle was -one, trial by jury another, and trial by inspection of the record was yet .another. The latter method was the one resorted to where the rights of the parties had been previously judicially .ascertained and stated upon the records of the court. In pronouncing upon those rights it was the duty of the judges alone to declare, and even when a formal plea of nul ticl Tecord was filed, the court proceeded to judgment upon .an inspection of ’the record alone. Referring to the trial •of this issue, the rule laid down in Blackstone’s Commentataries is as follows: “The trial therefore of this issue is merely by the record; for, as Sir Edward Coke observes, a record or enrollment is a monument of so high a nature, •and importeth in itself such absolute verity, that if it be pleaded that there is no such record, it shall not receive .any trial by witness, jury or otherwise, but only by itself.” Hammond’s Blackstone’s Commentaries, vol. 3, p. 442. 'Stephen, in his work on Pleading, page 101, in such cases states the practice to be as follows: “The trial by the record applies to cases where an issue of nul iiel record is joined in any action. If a record be asserted on one side to — 539 — ■exist, and the opposite party deny its existence, under the form of traverse, that there is no such record remaining in ■court as alleged, and issue be joined thereon, this is called •an issue of mil tiel record, and the court awards in such •case a* trial by inspection and examination of the record. Upon this the party affirming its existence is bound to ■produce it in court, on a day given for the purpose; and if he fail to do so, judgment is given for his adversary. 'The trial by record is not only in use when an issue of this kind happens to arise for decision, but it is the only legitimate mode of trying such issue, and the parties cannot put themselves upon the country.” See also Adams v. Betz, 26 American Decisions, p. 81; Dudley's (Ga.) disports, 255. If then the fact as-to whether a given judgment had been rendered is determinable by the court only, by inspection, and without the intervention of a jury, it is idle to say that it is within the province of a jury to declare upon the legal effect of the judgment. That matter is one necessarily for the court; .and it must pronounce upon the rights of the parties as they stand stated on the record. The act of Congress gives to judgments of other States, regularly rendered according to the laws of those States, full faith and credit in this State, and there being no attack upon the judgment sued on in the present case, such as Would have been allowable as against a judgment rendered in this State, the courts of this State are bound by that .judgment, and must, as matter of law, decree accordingly. They are not at liberty to do otherwise than declare as .against the defendant that he is concluded as though the judgment had been rendered in one of the courts of this ■State. The suit upon this foreign judgment may be likened unto a suit by scire facias to revive a judgment which has been rendered by one of the courts of this State, an'd which has become dormant. In such a case, where no attempt is made to impeach the judgment by matter of fact •competent to be proven outside the record, the court upon — 540 — inspection, of tbe record alone pronounces judgment of revivor, as matter of law, and so in a suit upon a foreign judgment, it likewise pronounces as matter of law. The trial of this question was by inspection alone, and was properly determinable by tbe court without, tbe assistance of a jury. We conclude, therefore, that whether tbe judgment of tbe court in tbe present case was adverse to tbe plaintiffs, because tbe judgment obtained on the foreign judgment tos void, it having been rendered without tbe intervention of a jury, or whether it was adverse to tbe plaintiffs because of tbe opinion entertained by tbe court, that, upon tbe facts stated, tbe clerk was guilty of no breach of duty,, it was in either event wrong, iand it is accordingly Reversed.