19 Ga. App. 256 | Ga. Ct. App. | 1917
Under the evidence adduced in this case, the following findings of fact were demanded: G. S. Finch, the husband of the plaintiff, was a retail grocer in Waycross, Georgia, and owed the defendant (a wholesale grocery company in the same city) $1,408.57. - Mrs. ■ Finch, the plaintiff, was not indebted to the defendant in any amount. On January 11, 1913, Finch made a general assignment for the benefit of his creditors, and on the same day he left, with his wife and children, for Atlanta, and on the same date shipped to his wife, to Atlanta, a car containing household goods, clothing, and some canned groceries. On January 15, 1913, Cox, the president of the defendant company, sued out an attachment before a justice of the peace at Waycross, alleging that Finch owed the defendant $1,408.57 and had absconded. Cox and a deputy-sheriff of Ware county went to Atlanta, located the car consigned to Mrs. Finch, in the railroad yards, and the deputy levied the attachment upon it. All the property in the car belonged to Mrs. Finch, and her husband had no title thereto. Among the property in this car was clothing for herself and her minor children. Mrs. Finch, with her children
A payment made to prevent a levy is not under duress where the party had an immediate and adequate remedy at law. Hoke v.
Under the facts shown by the record it is clear to us that the payment by Mrs. Finch to the defendant was made under an urgent and immediate necessity therefor, and to secure the release of her personal property which had been wrongfully levied upon under an attachment sued out by the defendant; that sections 4317 and 4116 of the Civil Code of 1910 are applicable to her suit, and
Under the foregoing rulings it is unnecessary to pass specifically upon the various grounds of the amendment to the motion for a new trial. As complained of therein, there were errors in the admission and the repelling of evidence, and in the charge of the court. These errors, however, in the light of this decision, will doubtless be eliminated upon the next trial of the case.
Judgment reversed.