Park v. Callaway

Lumpkin, J. (After stating the foregoing facts.) 1, 2. The law has not created any such officer as a clerk of a justice of the peace. If the justice employs a person to assist him in clerical work, such person is merely a scrivener or employee, not a public official. Inquiries made of such a person as to the setting of eases, and information given by him that a easejhad not been set for trial during a given term, and would not be tried until a later term, do not amount to action by the justice or the justice’s court. In Ballard Transfer Co. v. Clark, 91 Ga. 234, it was held that even if the magistrate himself on a court day, but when not presiding, erroneously answered a question as to a case having been called, and counsel making the inquiry shaped their conduct according^, they took the risk of the information being correct. And this was followed in Watkins v. Ellis, 105 Ga. 796; and Johnson v. Driver, 108 Ga. 595. A fortiori would this be true of a scrivener or clerical assistant employed by the magistrate in connection with his work. The writer must admit that to him the rule laid down in the cases referred to seems somewhat stringent. A justice transacting business as such in his office and discharging the business thereof must necessarily be often relied on by litigants for information as to the time when cases are to be tried. They can not sit by and watch him throughout the term lest his statement to them should be erroneous. They can not interrupt him while he is presiding in other cases, to ask questions about them. It appears that the justice whose action is complained of in this case had public calls at fixed times, when he set cases. But it is probable that in many districts this is not done. In such districts how shall a litigant know when to be present with his witnesses, except by asking the justice? True, a conversation on the street or away from his office might be different; but while he is in his office and engaged in his business as a justice, it seems rather harsh to say that parties can not rely on what he tells them as to their cases, and have no remedy if the statements are erroneous. The justice would not make such a misstatement intentionally. If he did so accidentally, he would no doubt correct it if he could. Courts of record may entertain a motion during the term to reopen a judgment. Or, for proper cause, a motion to set aside a' judgment may be made within the period fixed by the statute. But there is no such [122] power of correction in a justice’s court. If there is no error of law which will authorize a reversal, and the time for an appeal has passed, relief must be sought in equity or nowhere. Still, some of the decisions cited are by the entire bench and are controlling. 3. If a justice of the peace enters his judgment on his docket, it is not void though he does not sign it.’ Gunn v. Tackett, 67 Ga. 725. But this is not the case with an entry on the docket by a scrivener or “clerk.” Such an entry, not signed by the magistrate, is not a judgment; nor has it the effect of one. An execution issued upon it is without legal basis. The making of a mere memorandum on a separate list of cases, other than the docket, of “Judgment for plff.,” was not the entry of a lawful judgment on which an execution could be based. Nor did such memorandum render the judgment afterward written up l>3r the “clerk” valid. 4. It is alleged that the execution is about to be levied on the property of the defendant therein, and injunction is sought to prevent this, and a decree is prayed to cancel the execution and reinstate the case. If such an execution is levied, it can be met by affidavit of illegaliti?, and injunction is not necessary to resist it. Hart v. Lazaron, 46 Ga. 396; Ansley v. Glendenning, 56 Ga. 286. A case may be conceived where the legal remedy would not be as adequate as that in equity; as, where no effort was being made to enforce or levy the execution based on a void judgment; but it stood as'a menace to the property of the defendant, and an obstruction to his disposing of it, and where, perhaps, equitable proceedings would be proper to cancel it. Whether insolvency and other reasons might create a right to equitable relief need not be discussed. Such is not the case here. See also House v. Oliver, 123 Ga. 784. Judgment affirmed. Fish, G. J., absent. The other Justices concur.