Sutton v. Ford

Beck, P. J. (After stating the foregoing facts.) We are of the opinion that the court erred in refusing to grant a continuance. The attack made upon the administrator’s deed, which was an essential link in defendant’s claim of title, struck at a vital point in the defense of his case made by defendant, the plaintiff in error here, and the latter when confronted with the additional grounds of attack should have been given time to meet and repel the same. It is insisted by the defendants in error, plaintiffs in the court below, that the grant of time would have been futile, because the order of sale bears a death wound on its face, it appearing therefrom that the order was granted on the 4th day of February, -1904, and that the first Monday in February, 1904, was the first-day of the month, and that the minutes of the court of ordinary for the February term, 1904,-con-tain no order for the adjournment of the court of ordinary. In section 4811 of the Civil Code it is provided: “ If from any circumstance the ordinary should fail to hold said court at the regular term, or at any adjourned term, or the business of the court requires it, said ordinarjg or his deputy clerk, may adjourn-said court to such times as he may think proper: Provided,- such adjournment shall be entered on the minutes of the court.” It is insisted in the brief of counsel for defendant in error that the closing clause of the section just quoted, “provided, such adjournment shall be entered on the minutes of the court,” is a limitation put upon the exercise of the power of'the ordinary to hold .adjourned terms, and that there can be no valid exercise of that power “unless siich adjournment shall be entered on the minutes of the court.” It is insisted that as a matter of position and form this “proviso” appears to be mandatory, not merely declaratory of the legislative “wish or preference;” that'it relates to the jurisdiction of the court of ordinary to hold its sessions at a time, other than the first Monday in each month. We can not agree with counsel in this contention. The court of ordinary is a- court of general jurisdiction; and we are of the opinion that if it an [868] nounced during the regular term of the court, on the first Monday in February, 1904, that the court would be adjourned until a subsequent day, the 4th day of February, the court would stand adjourned until that day. To preserve the integrity of the records and render them complete, an entry of the adjournment should have been entered on the minutes. The use of the word “provided” does not necessarily give the provision for the entry of adjournment on the minutes a mandatory character. The word “provided” as used in legislative enactments, has a technical character, which should be recognized by the draftsman of a legislative bill or act; but it is frequently disregarded. Ga. Ry. &c. Co. v. City of Atlanta, 153 Ga. 335 (113 S. E. 420), on motion for rehearing. In the case of Wright v. Clark, 139 Ga. 34 (76 S. E. 565), it was said: “While the statute provides that courts of ordinary shall sit on the first Monday of each month (Civil Code, § 4809), it is further provided that such courts, when the business of the court requires it, may adjourn to such times as the ordinary may think proper (Civil Code, § 4811); and it appearing in the record that the judgment from which an appeal was taken in this case was rendered on a day later than the first Monday in the month, the court of ordinary being a court of general jurisdiction, it will be presumed, in the absence of anything to the contrary, that the term of court was lawfully in session on the day judgment was rendered.” But in the brief of counsel for defendant in error the ruling in Wright v. Clark, is commented upon, and it is pointed out that the presumption that the term of court was lawfully in session on the day of the rendition of the judgment is to be indulged “ in the absence of anything to the contrary;” and it is urged here that the production of the minutes showing that no entry of an adjournment was spread on the minutes conclusively overcomes the presumption that the judgment was rendered at the regular term. We do not think so. Admitting, for the sake of the argument, that the absence of an entry from the minutes raises a presumption that no adjournment was ordered, we are of the opinion that such a presumption itself might be overcome by showing that there was an order for the adjournment of court until the 4th day of February, 1904, and a failure upon the part of the ordinary, or his clerk, to enter this on the minutes. The right of the court of ordinary to adjourn to a subsequent date did [869] not originate in this section of the Code, as an examination of the history of the court of ordinary will show. It'is true it is a legislative declaration of that right, but the fact that there is added to that declaration of the legislature the words containing the proviso does not make those words mandatory, We think they should be treated as directory,— a direction which the ordinary should follow in order to make the minutes complete. When the amendment was offered and allowed, the defendant, upon making a proper motion for a continuance, should have been given opportunity to secure the attendance of a witness to show that the order was granted, and then, if'necessary, to have that order duly spread on the minutes. Suppose that he had succeeded in securing the presence of Judge Price, the former ordinary, and he had testified that he had, in open court, after the convening of the court of ordinary, because of the condition of the business, ordered that the court stand adjourned until a later day that week; and that he did not know why it had not been entered on the minutes. Or suppose that he had shown by his evidence that, immediately after granting it, for some providential cause he could not act any further, and that his clerk was not present, should it be held that the order for the sale of land, the basis of a purchaser’s title who had bought bona fide and for value, was a nullity? We think not. Moreover, we are of the opinion that, without proof that the ordinary had granted an order for adjournment from the first Monday to the 4th day of February, in the present ease there are presumptions in'favor of the judgment, and that it was rendered during the regular term, stronger than the presumption that it was rendered after the adjournment of the regular term, arising from the date thereof. In the case already cited of Wright v. Clark, as will be seen by reference to the extract quoted above, it was held, that, “it appearing in the record that the judgment from which an appeal was taken in this case was rendered on a day later than the first Monday in the month, the court of ordinary being a court of general jurisdiction, it will be presumed, in the absence of anything to the contrary, that the term of court was lawfully in session on the day judgment was rendered.” In that case the presumption in favor of the regularity of the judgment and that it was rendered during the term time was indulged from the fact that the judgment was rendered by a court of general [870] jurisdiction. In the present case it is recited in the judgment that it was at the February term, 1904, of the court of ordinary; that is, the order begins with the recital, “ In the Court of Ordinary of said County, February Term, 1904.” True, it concludes with the words, “ This 4th day of Feby., 1904.” And we are of the opinion, realizing how easy a slip of the pen is when we write the day of the month or month of the year, that the solemn recital that the judgment or order was passed at the February term should be given more weight than "the presumption in favor of the correctness of'the, number designating the day of the month. • , Exceptions are taken to several portions of the charge of the court in various grounds of the motion for new trial, but the excerpts from the charge are lengthy, and it is not necessary to copy them here. It is sufficient to say 'that'they are in conflict with what we have ruled above, in so far as they make absence from the minutes of an entry of eontinuánce of the court conclusive against an order for the sale of land, such as we have here. The rulings made ■ in headnotes 3 and 4 require no elaboration. Judgment reversed. All the Justices concur.