Gambar halaman
PDF
ePub

Smith, and has never ceased; and it seems useless to argue to show that a remedy so long antedating said amendment, a remedy for and against all alike, is not destroyed by it. That amendment is not the "scare-crow" it is often represented to be; it does not overthrow state laws, rights and remedies, to the extent and purposes for which it is often cited. It respects the common law, the statute law, the remedies and procedure existing in the state at its adoption. Cooley, Const.

Lim. 434, note 1. It came to preserve, not to destroy, existing rights. Just as well say that the tax bill seizing a horse for taxes is not due process of law.

As to the objection that the justice's docket showed no entry of the proceeding, that docket only applies to civil or criminal suits before him where he renders judgment, as section 176, c. 50, Code, requiring this docket, says, "It shall be used exclusively for entering his judicial proceedings." As shown above, a distress warrant is not a suit or judicial proceeding. The warrant was filed, and fully proven. In fact, it proves itself. It might be easy to show, if necessary, that, if it ought to be entered in the docket, other evidence could be heard to prove it, where a docket is silent. 12 Am. & Eng. Enc. Law, 502. Code, c. 50, 182, makes the docket evidence, but not conclusive, and thus it is not exclusive evidence.

It is said there is no evidence that the first installment of $600 was not paid. There is evidence in the affidavit made to get the distress warrant, which affidavit the statute makes evidence for this purpose. But no evidence is required. The undisputed lease under seal creates the debt, saying the $600 is to be paid on the 18th day of April, 1894, but not acknowledging its receipt. Besides, when once a debt exists, he who asserts payment must prove it; and there is not a scintilla of evidence to prove it. The decree is reversed, and the cause remanded, with direction to enter a decree allowing Hannah Grinberg $1,200, with interest on $600 of it from 18th of April, 1894, and $600 of it from 18th of October, 1894, and to provide for its payment as a preferred demand over other debts out of the fund arising from said stock of goods.

MEMORANDUM DECISIONS.

ALGER v. TURNER. (Supreme Court of Georgia. July 23, 1898.) EVIDENCE OF AGENCY.

This case is in all material respects similar to that of Alger v. Turner (this day decided) 31 S. E. 423, and is controlled by the decision therein rendered.

Action by H. L. Turner against R. A. Alger. Judgment for plaintiff. Defendant brings error. Reversed.

PER CURIAM. Judgment reversed.

HAMILTON ▼. STATE. (Supreme Court of Georgia. Nov. 18, 1898.) RIOT EVIDENCE.

This case involves the same questions that were considered in the case of Dixon v. State, 31 S. E. 750, and is controlled by the ruling made in that case.

Error from city court of Cartersville; J. W. Harris, Judge.

Gene Hamilton was convicted of riot, and brings error. Reversed.

J. B. Conyers and Ben J. Conyers, for plaintiff in error. Sam P. Maddox, Sol. Gen., for

the State.

PER CURIAM. Judgment reversed. All the justices concurring, except SIMMONS, C. J., absent, and LUMPKIN, P. J., absent on account of sickness.

PRICHARD v. REYNOLDS. (Supreme Court of Georgia. July 23, 1898.) SALE OF LAND-OUTSTANDing Title.

This case, upon its facts, is controlled by the decision of this court in Black v. Walker, 26 S. E. 477, 98 Ga. 31.

Error from superior court, Catoosa county; George F. Gober, Judge.

Action by H. B. Reynolds against J. K. Prichard. Judgment for plaintiff. Defendant brings error. Affirmed.

Payne & Payne and Shumate & Maddox, for plaintiff in error. W. E. Mann and R. J. & J. McCamy, for defendant in error.

PER CURIAM. Judgment afirmed.

ALLEN V. HAMMOND. (Supreme Court of North Carolina. April 28, 1898.) Appeal from superior court, Madison county. J. M. Gudger, for appellee. No opinion. Dismissed for defective record.

BLAKE v. BLAKE et al. (Supreme Court of North Carolina. March 2, 1898.) Appeal from superior court, Wake county. M. A. Bledsoe, for appellant. J. H. Fleming, for appellees. No opinion. Appeal dismissed.

BLEDSOE v. SHAFFER.

(Supreme Court of North Carolina. May 11, 1898.) Appeal from superior court, Wake county. M. A. Bledsoe, for appellant. W. N. Jones, for appellee. No opinion. Judgment affirmed.

CHATFIELD v. STRINGFIELD et al. (Supreme Court of North Carolina. April 27, 1898.) Appeal from superior court, Haywood county. H. R. Ferguson, for appellees. No opinion. Dismissed pursuant to the seventeenth rule.

CLONTZ v. SIMONDS. (Supreme Court of North Carolina. May 11, 1898.) Appeal from superior court, Cherokee county. J. W. Cooper, for appellant. No opinion. Judgment affirmed.

COLLINS v. PETTITT et al. (Supreme Court of North Carolina. Oct. 25, 1898.) Appeal from superior court, Halifax county; Norwood, Judge. Action by J. A. Collins against G. W. Pettitt and others. From a judgment for plaintiff, defendants appeal. Reversed. W. A. Dunn and Thos. N. Hill, for appellants. E L. Travis and MacRae & Day, for appellee.

PER CURIAM. The questions presented in this case being the same as those presented in

Wilcox v. Leach (at this term) 31 S. E. 374, for the reasons set out in the opinion in that case, there is error.

COX v. DUNN. (Supreme Court of North Carolina. March 22, 1898.) Appeal from superior court, Lenoir county. Jones & Boykin, for appellant. George Rountree, for appellee. No opinion. Judgment affirmed.

DAVIS v. BEARD. (Supreme Court of North Carolina. Sept. Term, 1897.) Appeal from superior court, Cumberland county. No opinion. Dismissed pursuant to the seventeenth rule.

DAVISON et al. v. WEST OXFORD LAND CO. (Supreme Court of North Carolina. Sept. Term, 1897.) Appeal from superior court, Granville county. No opinion. Appeal dismissed pursuant to the seventeenth rule.

DOVER et ux. v. RAY. (Supreme Court of North Carolina. Sept. Term, 1897.) Appeal from superior court, Madison county. No opinion. Appeal dismissed pursuant to the sixteenth rule.

DUNN v. UNDERWOOD et al. (Supreme Court of North Carolina. Sept. Term, 1897.) Appeal from superior court, Sampson county. No opinion. Dismissed.

EVERETT et al. v. SHUFFLER. (Supreme Court of North Carolina. May 3, 1898.) Ag peal from superior court, Swain county. G. Ferguson, for appellant. No opinion. Judgment affirmed.

FULP v. ROANOKE & S. R. Co. (Supreme Court of North Carolina. April 5, 1898.) Appeal from superior court, Forsyth county. Watson, Buxton & Watson, for appellee. No opinion. Judgment affirmed.

GARRISON et al. v. BLANKENSHIP et al. (Supreme Court of North Carolina. Sept. Term, 1897.) No opinion. Judgment affirmed.

GINGERY v. SMITH. (Supreme Court of North Carolina. Sept. Term, 1897.) Appeal from superior court, Robeson county. No opinion. Dismissed pursuant to the fifteenth rule.

GOOCH v. BOONE et al. (Supreme Court of North Carolina. Feb. 15, 1898.) Appeal from superior court, Northampton county. No opinion. Dismissed pursuant to the seventeenth rule.

HARTSELL v. COLEMAN et al. (Supreme Court of North Carolina. March 25, 1898.) Appeal from superior court, Cabarrus county. W. G. Means, for appellants. Montgomery & Crowell, for appellee. No opinion. Judgment affirmed.

HENDREN v. ALSPAUGH et al. (Supreme Court of North Carolina. May 13, 1898.) Appeal from superior court, Guilford county. Č. M. Stedman, for appellants. J. A. Barringer and L. M. Scott, for appellee. No opinion. Judgment affirmed.

[blocks in formation]

MCDOWELL V. MAXWELL (Supreme Court of North Carolina. Dec. 20, 1898.) Appeal from superior court, Burke county; Starbuck, Judge. Action by C. W. McDowell against W. C. Maxwell, trustee, to restrain a foreclosure sale. From a judgment for defendant, plaintiff appeals. Affirmed. Avery & Ervin, for appellant. A. Burwell, P. D. Walker, and F. I. Osborne, for appellee.

FURCHES, J. This case presents substantially the same facts as Williams v. Maxwell, 31 S. E. 821, and is governed by the opinion in that case. The judgment of the court refusing an injunction is affirmed.

MCNAIR v. PURCELL. (Supreme Court of North Carolina. Sept. Term, 1897.) Appeal from superior court, Cumberland county. No opinion. Appeal dismissed pursuant to the seventeenth rule.

MARCOM v. WYATT et al. (Supreme Court of North Carolina. Sept. Term, 1897.) Ap

[merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small]

1. Acts 1897, c. 185, § 7, providing that the county board shall appoint one member of each political party to act as registrars of election in each precinct, does not require three members for each precinct; and, where there are but two parties in the precinct, more than one member cannot be appointed from the same party.

2. Under Acts 1897, c. 185, 7, providing that the county board shall appoint one member of each political party to act as registrars of election in each precinct, the state chairmen or county chairmen of the parties have no right to designate the persons to be appointed.

3. In a proceeding against a county board to show cause why registrars of election appointed by them (one from each political party) should not be removed, the burden is on petitioners to show that an appointee is not a member of the party from which he is appointed, or is otherwise disqualified.

4. Under Acts 1897, c. 185, § 7, providing for the appointment of one member of the board of registrars of election for each precinct from each political party, a person who votes with one party on the national tickets, and with another on the state tickets, is not qualified.

5. Acts 1897, c. 185, § 7, provides that, when a registrar of election appointed by the county board refuses to serve, the clerk shall appoint a member in his place. Held that, where the board reappoints a member instead, the appointment will be ratified, if there are no objections to the member so appointed.

6. In a proceeding for the removal of a registrar of election, one affidavit was to the effect that he was an inebriate, while there were several others to the effect that, while he occasionally became intoxicated, he was industrious and supported his family. Held that he was qualified.

7. A person who cannot read or write, except to write his name, is not qualified to act as registrar of election, under Acts 1897, c. 185, § 7, which requires that such registrar "shall be able to read and write the English language."

8. Where the only evidence that a registrar of election is a member of the political party from which he was appointed is that he was a registrar from that party at a previous election, and that since that time he has stated that he was a member of a different party, he will be removed.

9. When a registrar of election offers no evidence that he is a member of the political party from which he was appointed, and there is evidence that he had been a delegate to a county convention of another party, he will be removed.

10. One affidavit stated that a registrar of election had voted and acted with the party from which he was appointed. Another stated when he was served with the notice of his appointment he said that he

was not a member of that party. Held, that he would be removed.

11. In filling vacancies in the office of registrars of election caused by the removal of some of the appointees, the court is not bound by the recommendation of the chairmen of the parties from which the appointments are to be made.

Proceeding by J. W. Mullen and another against J. M. Morrow and another.

FURCHES, J. Under chapter 185, Acts 1897, amending chapter 159, Acts 1895, and upon the application of J. W. Mullen, chairman of the Republican party of Mecklenburg county, and T. S. Cooper, chairman of the Populist party of said county. I issued a rule upon the defendants on the 20th day of September, 1898, returnable before me at Raleigh on the 27th day of September, in which they are required to show cause why the prayers of the petitioners should not be granted. At the time and place designated, the defendants appeared and answered; being represented by P. D. Walker and F. M. Shannonhouse, as their attorneys, while the petitioners were represented by J. W. Graham and D. K. Pope, as their attorneys.

This statute, being of recent date, has received no construction from the courts, so far as I know; and it becomes my duty to put a construction upon it for the first time.

The board, in making the appointments of registrars for Mecklenburg county, have acted upon the idea that it was their duty to appoint three registrars for each voting precinct. This is so, if there is any one in the precinct, filling the requirements of the law, to appoint, but not if there is not. The act (chapter 185, § 7) says they "shall appoint one citizen and quali fied voter for each of the political parties of and for each election precinct, who shall be able to read and write the English language, and who shall be known, for the duties required of them under this act, as registrars of election in their respective precincts." Thus, it appears that the board are not required to appoint three registrars for each voting precinct, but to appoint one qualified voter of the precinct from each one of the political parties,-Democrat, Populist, and Republican,-and that the board had no right or authority to appoint a member of one party for another party; that the board had no authority to appoint two registrars from the same party in the same voting precinct. And it being admitted by defendants that J. A. Blackney, J. R. Porter, and Banks Potts are Democrats, but were appointed in the place of Populists, there being no Populists to appoint, thus making two Democratic registrars and one Republican in the precinct, which was not authorized by the law, they are hereby removed. W. S. Liddell was appointed in the place of a Populist for the reason that there was no Populist in the precinct to appoint. The defendants say he is a Republican, and the petitioners say he is a Democrat. I shall not decide this question, as it makes no difference which he is. If he is a Republican, as defendants allege, the Republicans have two; and if he is a Democrat, as petitioners allege, the Democrats have two. Let it be the one way or the other; the appointment is unauthorized, and he is hereby removed.

The act of 1897, amending the act of 1895, makes a material change in regard to the ap pointment of registrars and judges of election. Under the act of 1895 the chairmen of the different political parties had the right to designate the registrars and judges to be appointed for their respective parties, and the clerk was only his agent, and had no discretionary powers, if the wishes of the chairman were made known on or before the first Monday in September. Harkins v. Cathey, 119 N. C. 649, 26 S. E. 136. But under the act of 1897 neither the state chairmen nor the county chairmen have any legal right to designate the parties to be appointed. This is left with the

board within prescribed limits. The board now Occupy very much the same position the clerk did under the act of 1895, where the chairman of a party did not file his lists in time. Harkins v. Cathey, supra.

R. W. Smith swears that he is a Republican, has always voted that ticket, and expects to do so now. As the presumption is with defendants, the burden is on the petitioners to show the error, and that they are entitled to the relief asked. I will give Mr. Smith credit for knowing what he is, and that he correctly states the same. His appointment is sustained. Harkins v. Cathey, supra.

No. 2 is withdrawn, as Wood refused to act, and another registrar has been appointed in his place, that seems not to be objected to.

No. 4. J. P. Wilson says he is a Republican in national politics, but in state and county politics he votes the Democratic ticket. This, in my opinion, disqualifies him as a Republican registrar. It is like a juror when two parties are on trial in the same case; though he may be favorably disposed as to one of them, if he has formed and expressed an opinion adverse to the other he would be disqualified.

No. 5. T. B. Guthrie stands on the same footing as J. P. Wilson, and my opinion as to him is the same as in the Wilson case.

No. 6. Fred Oliver has refused to serve, and John C. Davidson has been appointed in his place by the board. It seems this should have been done by the clerk. But, as there seems to be no objection to him, this appointment is ratified by me.

No. 7. Walter Donaldson is asked to be removed on account of inebriety. The burden is on the petitioners. They have one affidavit to that effect, but the defendants have several affidavits going to show that, while he does become intoxicated, he is not usually so; that he is industrious, supports his family, and is qualified to act as registrar. This is an important appointment he has, and, if he has any pride of character, he will not get drunk while he is acting as registrar. I think the petitioners have failed, and I decline to remove him.

No. 8. R. J. Ferguson seems to me to be a Republican. Petitioners have failed to show that he is not, and I decline to remove him.

No. 9. S. W. Stewart says that he cannot read and write sufficiently to discharge the duties of registrar; that he can write his name, but this is only done mechanically. I must take what he says to be true. Harkins v. Cathey, supra. And it does not seem to me that a man that can only write his own name is qualified to register the names of others. I must remove him.

No. 10. J. O. Turbeyfill: Respondents offer no affidavit to sustain their allegation that he is a Republican. The only evidence they offer of this is an exhibit showing that he was appointed as a Republican registrar in 1896, when the petitioners show by the affidavit of W. B. Williamson that Turbeyfill on the 15th of September, 1898, told him that he was a Democrat. may not have been a Republican in 1896 or, if he was, he seems to have changed since that time, and is a Democrat now. Harkins v. Cathey, supra. He is removed.

He

No. 11. G. A. Morrow: This allegation in the petition must have been made under a mistake as to what party he was appointed for. It seems he was appointed as a Populist, and that he is a Populist. I decline to remove him. Nos. 12 and 13 withdrawn as to Osborne White and W. R. Barnett, and these appointments stand.

[blocks in formation]

tending to show that he is not a Democrat, while petitioners offer the affidavit of T. A. Austin that Woodsides told him that he was not a Populist; that he had been a Prohibitionist, "but was now a Democrat, and one of the managers in the late Democrat primaries." He must be removed.

No. 3. J. H. Hutchinson, appointed as a Populist: Respondents offer no evidence tending to show that he is a Populist, while petitioners offer the affidavit of W. S. Clanton that he saw said Hutchinson in the Democratic county convention_representing his township as a delegate. He is removed.

No. 7. J. C. Dennis appointed as a Populist: There is no direct evidence as to what he is now, and, as the burden is on the petitioners, I think they fail to make good their allegation. Harkins v. Cathey, supra. He is not re

moved.

No. 8. H. H. Hoover, appointed as a Populist: Defendants offer the affidavit of E. O. Johnson that Hoover had voted and acted with the Populist party, and the petitioners offer the affidavit of E. R. Spirris that he was present when E. O. Johnson served the notice on Hoover that he had been appointed a registrar for the Populist party on the 12th of September, when Hoover "then and there declared that he was a Democrat, and that he could not stand the Populists." From this evidence, I do not think him a Populist, and that he must be removed.

As to those removed for the reason that they were appointed in the place of Populists, where there were no Populists in the precinct, there will be no one appointed in their stead. As to the others removed under the rulings in this proceeding, there should be others appointed in their stead. This is the most difficult part of my duty, as I know few persons in the precincts from which they have been removed. These remarks have been made without intending to reflect upon the honor or integrity of the parties removed. It is probable that they would all have done their duty as registrars. But the law provides who may and who may not be registrars, and this we must all observe and obey. The learned counsel for defendants in his argument stated that in election times party feeling ran high, and, when questions came up to be decided, they were most likely to decide them in favor of their side. This should not be so, but unfortunately it is often too true. And for this reason, as I suppose, the legislature balanced the matter as best it could, by providing each party a representative on the board, if it be possible to have one. In filling the vacancies made by this order, I shall have to rely principally upon the recommendations made by the chairmen of the Populist and Republican parties. I am not bound by this, but it may serve as some evidence of fitness. Har kins v. Cathey, supra.

Order of the court: In addition to those removed where there will be no appointments to fill their places, to wit, W. S. Liddell, J. A. Blackney, J. R. Porter, and Banks Potts, the following other persons appointed registrars are removed, to wit: J. P. Wilson, Charlotte township, ward 2, precinct 2; and J. S. Leary is appointed in his stead. In ward 2, precinct 3, Charlotte township, T. B. Guthrie is removed, and R. E. McDonald is appointed in his stead. In Providence township, precinct No. 1, S. W. Stewart is removed, and W. M. Kiser, appointed in his stead. In Dewese township, precinct 2, J. O. Turbeyfill is removed, and W. B. Sims appointed in his stead. In Charlotte township, ward No. 1, precinct No. 2, J. F. Woodsides is removed, and J. P. Sossaman is appointed in his stead. In ward 4, precinct 3, Charlotte township, J. W. Hutchinson is removed, and J. W. Meacham is appointed in his stead. Paw Creek township, precinct No 2, H. H. Hoover is removed, and M. L. Kistler appointed in his stead. All the appointments made in this order are appointments of the parties named, to

In

be and act as registrars of election for the fall election in 1898,-county, state, and national. The sheriff of Mecklenburg county will serve this order upon the defendants and the parties herein appointed registrars immediately upon the receipt of the same, and make due return to me as to the manner and time of serving the same. The clerk of the supreme court will at once issue this order to said sheriff. The defendants are adjudged to pay the costs of this proceeding, to be taxed by the clerk of the supreme court of North Carolina. This September 28, 1898.

[blocks in formation]

NICHOLSON V. COMMISSIONERS OF DARE COUNTY. (Supreme Court of North Carolina. Oct. 11, 1898.) Appeal from_superior court, Currituck county; Norwood, Judge. Action by Lovey W. Nicholson against the commissioners of Dare county. Judgment for plaintiff. Defendants appeal. Affirmed. E. F. Aydlett, for appellants. W. B. Shaw, for appellee. PER CURIAM. Affirmed.

FURCHES, J. (dissenting). This case is here for the fourth time. A majority of the court have affirmed the judgment appealed from by a "per curiam" order. I cannot concur in this summary manner of disposing of this appeal. In my opinion, it overrules all three of the former opinions of this court, without giving any reason for doing so. If these opinions are erroneous and are overruled, the court should have said so. I do not propose to discuss the case in this opinion. Were I to do so, it would be but to repeat the arguments contained in the opinions rendered upon former hearings, and reported in 118 N. C. 30, 24 S. E. 728; 119 N. C. 20, 25 S. E. 719; and 121 N. C. 27, 27 S. E. 996.

NORRIS. WILMINGTON & W. R. CO. (Supreme Court of North Carolina. Feb. 23, 1898.) Appeal from superior court, Pitt county. John L. Bridgers, R. O. Burton, and B. M. Gatling, for appellant. Bond & Fleming, for appellee. No opinion. Judgment affirmed.

PARKER et al. v. ALBERTSON. (Supreme Court of North Carolina. Sept. Term, 1897.) Appeal from superior court, Duplin county. No opinion. Dismissed pursuant to the seventeenth rule.

POLLOCK v. WADSWORTH. (Supreme Court of North Carolina. Sept. Term, 1897.) Appeal from superior court, Jones county. No opinion. Appeal dismissed pursuant to the thirtieth rule.

POPE et al. v. COATES et al. (Supreme Court of North Carolina. Sept. Term, 1897.) Appeal from superior court, Harnett county. No opinion. New trial granted.

[blocks in formation]

SLATER et al. v. STEWART et al. (Supreme Court of North Carolina. Oct. 25, 1898.) Appeal from superior court, Edgecombe county; Brown, Judge. Action by W. L. Slater and others against J. P. Stewart and others. From a judgment for plaintiffs, defendants appeal. Modified and affirmed. H. G. Connor, for appellants. Jacob Battle, for appellees.

FURCHES, J. The facts governing this case are substantially the same as those in the case of Mahoney v. Stewart (at this term) 31 S. E. 384. This was admitted by counsel on the argument here. This being so, this case is governed by that case. Therefore the injunction and order appointing a receiver are continued as to the defendant Stewart, but are dissolved and vacated as to the administrator, Braswell, and the administration of his intestate's estate. The judgment appealed from will be so modified, but the plaintiffs will be taxed with the costs of this appeal. Modified and affirmed.

SMITH V. MONTAGUE. (Supreme Court of North Carolina. March 2, 1898.) Appeal from superior court, Wake county. M. A. Bledsoe, for appellant. Jones & Boykin, for appellee. No opinion. Action dismissed on motion of defendant on the ground that complaint does not state a cause of action.

SORRELL v. STINSON et al. (Supreme Court of North Carolina. March 23, 1898.) Appeal from superior court, Moore county. Womack & Hayes, A. P. Gilbert, and W. E. Murchison, for appellants. Douglass & Spencer and Black & Adams, for appellee. No opinion. Appeal dismissed.

STAGG v. EINSTEIN et al. (Supreme Court of North Carolina. Sept. Term, 1897.) Appeal from superior court, Lenoir county. No opinion. Dismissed pursuant to the seventeenth rule.

STATE V. AUSTIN. (Supreme Court of North Carolina. Dec. 13, 1898.) Appeal from superior court, Union county; Green, Judge. J. E. Austin was convicted of crime, and appealed. Error. Osborne, Maxwell & Keerans, for appellant. The Attorney General, for the State.

PER CURIAM. This case is governed by the foregoing opinion (31 S. E. 731), and is a part of the same transaction; the only difference being that here the landlord was obstructed in taking possession of another basket of cotton by the daughter of Henry Keziah sitting down on it. According to her testimony, the defendant told her to get up, and threatened to hit her with a stick which he had in his hand if she did not, and she jumped up and ran off. The defendant denies threatening to strike her with the stick. But, in any aspect of the evidence, Henry Keziah and his force of hands were on the old man's land, without a shadow of right, forcibly taking possession of the crop to which

« SebelumnyaLanjutkan »