Goldberg v. Fuller

Gilbert, J. Goldberg and wife sued Smith and wife in trover. The two wives are sisters. The Smiths executed a statutory trover bond, signed by Fuller et al. On the trial of the case judgment was rendered against the defendants and their sureties. When the judgment was about to be enforced against the sureties, the latter obtained a judgment of cancellation of the judgment as to them, on the ground of collusion and fraud between the parties as against the sureties. That judgment was affirmed [59] by this court. Goldberg v. Fuller, 176 Ga. 616 (168 S. E. 249). For further statement of that case see the decision of this court above cited. No. 9828. December 13, 1933. O. G. Battle and Louis H. Foster, for plaintiffs. Camp, Savage & Crawford and A. S. Camp, for defendants. 1. The result of the above-stated litigation was to leave the judgment of Goldberg et al. v. Smith et al. as a final adjudication of the case as between them (the judgment as against them stands because both parties were' found guilty of fraud). Fuller et al., sureties, are finally discharged. The judgment against the sureties is void. Branan v. Feldman, 158 Ga. 377 (2), 383 (123 S. E. 710). 2. On the showing made in the motion for continuance, considered in connection with the issues involved in the ease, the court did not err in denying the motion. Lyles v. State, 130 Ga. 294 (60 S. E. 578) ; Kennedy v. Dukes, 137 Ga. 209 (73 S. E. 400). (a) A renewal of the motion for a continuance on the same ground at a later stage of the proceeding did not add to its strength. (B) Under the facts disclosed by the record, the petitioners were not harmed by the refusal to continue, since there could be only one result, that is, the judgment rendered. '3. The court did not err in rendering the following judgment (after reciting the former adjudication) : “It is therefore ordered and decreed that said sureties, A. L. Fuller and J. A. Milam, are hereby forever discharged from any and all liability on said bond, and the eventual condemnation-money bond aforesaid is hereby canceled and declared null and void.” Judgment affirmed. All the Justices concur, except Hill, J., absent because of illness.