Maryland Casualty Co. v. Simmons

WALKER, Circuit Judge. This was an action against the plaintiff in error, Maryland Casualty Company, the surety on an administrator’s bond, seeking to recover the amount of an alleged devastavit by the principal in the bond. It was admitted that a court of competent jurisdiction had rendered a decree, in a case to which the principal was a party, adjudging that there had been a devastavit by him to the amount of the sum sued for. The bill of exceptions shows the following: Upon it being made known to the court that the defendant proposed to offer evidence attacking the above-mentioned decree, the court said to plaintiff’s counsel: “Any evidence that is introduced by the Maryland Casualty Company for the purpose of attacking the decree you object to?” In answer to this question plaintiff’s counsel replied: “Yes, sir.” What then occurred is shown by the following extract from the bill of exceptions: “The court then stated: ‘I will hear argument on that question, just as if evidence had been offered that attacked the decree.’ After argument the court sustained the objection to any evidence attacking the decree, and directed a verdict for the plaintiff for the full amount of principal and interest claimed in the suit, to which action of the court exception was taken and allowed.”’ A reversal of the judgment is sought on the ground that the court erred in its above-mentioned ruling as to evidence. The judgment cannot be reversed because of that ruling, for the reason that it is not made to appear what evidence the defendant desired to introduce. It is well settled that, for a ruling rejecting evidence to be a ground for reversal in a case at law, the evidence rejected, or a statement of what it tended to prove, must appear in the bill of exceptions. Herencia v. Guzman, 219 U. S. 44, 31 S. Ct. 135, 55 L. Ed. 81; Packet Co. v. Clough, 20 Wall. 528, 22 L. Ed. 406; Patrick v. Graham, 132 U. S. 627, 10 S. Ct. 194, 33 L. Ed. 460; Ladd v. Missouri Coal & Mining Co., 66 F. 880, 14 C. C. A. 246; rule 11, U. S. Circuit Court of Appeals, Eifth Circuit. The evidence desired to be introduced by the defendant was not so disclosed or offered as to make the court’s action in rejecting it available in an appellate court. It is not questioned that under the law of Georgia the above-mentioned decree against the principal in the bond sued on constituted prima facie evidence against the surety. Bryant v. Owen, 1 Ga. 355; Shipp v. McCowen, 147 Ga. 711, 95 S. E. 251. There was no evidence controverting the correctness of the finding embodied in that decree as to the amount for which the principal was liable. It was not error to direct a verdict for the plaintiff for the amount for which the uheontroverted evidence adduced showed the defendant was liable. After a witness for the plaintiff had testified that he was a practicing attorney at Dublin, Ga., that he wrote a letter to the defendant, which was properly stamped' and addressed to defendant at Baltimore, Md., that he mailed that letter, that he kept a carbon copy of it, and received a reply to it by due course of mail thereafter, the plaintiff offered in evidence the carbon copy and the reply produced by the witness. Defendant objected to the admission of such carbon copy, on the ground that there-had been no showing as to where .the original [31] was, and no notice to produce it, and because the execution of sueh reply bad not been proved. That objection was overruled. It seems that it was permissible to admit in evidence snch carbon copy, as tbe evidence showed that that instrument was a carbon copy of a letter duly addressed and mailed to tbe defendant in another jurisdiction, and the receipt in due course of mail of a reply thereto. Savannah Bank & Trust Co. v. Purvis, 6 Ga. App. 275, 65 S. E. 35; Scofield v. Parlin & Orendorff Co., 61 F. 804, 10 C. C. A. 83. But, even if that ruling was not free from error, it would not be a ground for reversal. If tbe objection to the admission in evidence of the carbon copy mentioned bad been sustained, tbe defendant’s admissions and tbe other evidence adduced warranted the action of the court in giving the above-mentioned direction for a verdict in favor of the plaintiff. The conclusión is that the record shows no reversible error. The judgment is affirmed.