Mayor of Cuthbert v. Brooks

This was an action brought by the plaintiff against the defendant and his securities on a bond given by him as clerk and treasurer of the city of Cuthbert. On the trial of the case, the jury found a verdict for the plaintiff for the sum of $53710. A motion was made for a new trial on the several grounds stated therein, which -was granted by the Court, and the plaintiff excepted. The plaintiff also made a motion to dismiss the motion for a new trial when it came on to be heard, on the ground that time had been given for filing a brief of the evidence by the Court, and that the hearing of the motion had been postponed by the order of the Court from time to time, until November term, 1872, the case having been tried at the November term of the Court, 1871, and because the brief of the evidence ivas not filed within- the time ordered by the Court after its approval of the same, though it was filed before the hearing of the motion. The Court overruled the motion to dismiss the rule for a new trial, and the plaintiff excepted.

1. This Court will presume that the Court below had good and sufficient grounds for the postponement of the hearing of the motion as it did, in the absence of any showing to the contrary, and that the defendant’s counsel was not in default, in *184not filing the brief of the evidence within the fifteen days after its approval and order to file it by the Court. The presiding Judge may not have returned it in time to have been filed within the fifteen days, and it is not apparent that the plaintiff was hurt in any manner by its not having been filed within that time.

2. There is a general disposition manifested by parties and counsel to ignore all discretion on the part of the Superior Courts and the Judges thereof, in conducting the business before them, and to consider this Court as a Court of original jurisdiction for that purpose; whereas, the Constitution and laws of the State have clothed the Superior Courts and the Judges thereof with original jurisdiction and discretion to hear and determine cases which may be brought before them as provided by law, and this Court has no lawful power or authority to control the exercise of the discretion of the Superior Courts or the Judges thereof, in the legitimate exercise of their discretion pn conducting the business before them, unless that discretion has been abused, or some law of the land violated.

3. There was no error in the charge of the Court to the jury, in view of the facts contained in the record, that the defendant, Brooks, as treasurer, and his securities were liable for all moneys that came into his hands as such treasurer, until his successor was appointed according to law. In looking through the evidence in the record, we are not entirely satisfied that the verdict was right, and for that reason, we will not control the exercise of the discretion of the Court below in granting the new trial.

4. In our judgment, this is a case in which the Court below might properly exercise its discretion in the appointment of an auditor to investigate the treasurer’s accounts witn the city authorities, and report the result thereof to the Court, as provided by the Act of 13th December, 1871.

Let the judgment of the Court below be affirmed.