35 Ga. App. 236 | Ga. Ct. App. | 1926
John M. Carter, executor of the will of William L. Boss, brought suit against J. H. Felker on a note given by Felker for the purchase-price of certain land. During the pendency of the suit Carter died, and J. T. Still was made administrator de bonis non with the will annexed, and the suit on the note so pro
Felker’s original and amended affidavit of illegality is of considerable length and will not be here stated in full, but it alleged, in the main, that under the will of William L. Boss the executor had no authority to 'sell the land which movant bought, and the purchase price of which was the basis of the original suit against him; that some of the legatees were minors; that movant could not get a good title to said land; that Still was not the legal representative of the deceased executor of the will; that the will had never been probated in solemn form; that unless the cloud on the title was removed the sale would amount to a confiscation of the property; that the consideration for which the note sued on ivas given has failed; that movant was deceived and misled to believe that the will did contain power to sell the land in question, and that no deed was executed and recorded prior to the levy as provided by law. Movant admitted by his evidence that there was no merit in the last of these allegations; and the other allegations were properly stricken on demurrer, or disallowed, because they were but an attempt to go back of the judgment, and were not proper allegations in an affidavit of illegality. If they were proper matters of defense to the original action, they should have been set up as a defense to the original suit; and if they were set up as a defense to the original suit and were improperly stricken (which is not now before us for adjudication), the defendant to the suit had his remedy, of which he should have availed himself. As a matter of fact, the record shows that these allegations of the af
The jury were authorized, under the facts, to award damages for the delay occasioned by the filing of the affidavit. Where a portion of an affidavit of illegality has been dismissed on demurrer for insufficiency, and the remainder is admitted to be incorrect, as in the instant case, the jury may be authorized to infer from this that it was filed for delay only, and a verdict assessing damages in favor of the plaintiff in execution, at less than 25 per cent, of the principal debt, will not be disturbed, where there is any evidence to support it, unless for some material error of law. Civil Code, § 5308; Jordan v. F. & M. Bank, 5. Ga. App. 244 (5) (62 S. E. 1024); White v. Haslett, 49 Ga. 280 (2, 3), 283.
The motion for a new trial complains of the following charge: “The question whether or not the defendant filed this illegality for the purpose of delay is for you to determine.” The error assigned is the omission of the word “only” after the word “delay.” Reference to the charge on this subject shows that on five different occasions the court used the expression “delay only.” The jury were not misled by the single omission of which complaint is made.
Error is assigned also because the court refused to charge that “The burden of proof is on the plaintiff to show that the illegality was filed for delay only,” and it is insisted that “the burden of proof is on the plaintiff in fi. fa.,” yet in his brief the movant says : “Defendant Felker assumed the burden of proof on the illegality.” If a plaintiff in fi. fa. makes out a prima facie case, or if the defendant in fi: fa. admits a prima facie case and assumes the burden, then the defendant must carry the burden to the extent of sustaining by proof all the essential allegations in his affidavit of illegality, but this would not deprive the plaintiff in fi. fa. of the right to open and conclude the argument. James v. Edward Thompson Co., 17 Ga. App. 578 (2) (87 S. E. 842); Bertody v. Ison, 69 Ga. 317; Alexander v. City of Atlanta, 21 Ga. App. 737 (95 S. E. 267).
Reference to the record shows that the plaintiff in error suffered no injury from the charge of the court or from the rejection of testimony. Oh the contrary, the court was rather liberal in the admission of testimony of the defendant in fi. fa., he having been
The record shows that this litigation has been pending for more than five years, the original suit being returnable to the February term, 1921, of the superior court; and, including two motions for rehearing, it has been presented five times to the appellate courts. It is obvious that there were no legal grounds for a reversal of the judgment of the lower court on the record now before us; and it is ordered (as requested by the defendant in error) that ten per cent, damages for delay be awarded the defendant in error, and that this be entered in the remittitur, as provided by section 6213 of the Civil Code.
Judgment affirmed, with damages.