22052 | Ga. Ct. App. | Jul 29, 1932
Lead Opinion
This case arose upon an affidavit of illegality, based upon the ground that the fi. fa. was paid in full after the rendition of the judgment. The trial judge entered the following order in open court: “This case coming on regularly for trial and the plaintiff in ff. fa. announcing ready and the defendant in fi. fa. failing to proceed, the burden being upon him, it is ordered, considered, and adjudged that said within affidavit of illegality be dismissed, and same is dismissed for want of prosecution.” To this judgment exception is taken.
It is a general rule that upon the trial of an affidavit of illegality the burden is upon the plaintiff in fi. fa. to make a prima facie case by putting in evidence an execution, fair on its face, and a legal levy thereon (James v. Edward Thompson Co., 17 Ga. App. 578 (2), 87 S.E. 842" court="Ga. Ct. App." date_filed="1916-02-03" href="https://app.midpage.ai/document/james-v-edward-thompson-co-5608320?utm_source=webapp" opinion_id="5608320">87 S. E. 842); but where an affidavit of illegality contains allegations of fact merely setting up affirmative defenses, in the
Judgment affirmed.
Rehearing
ON MOTION ROE REHEARING.
By a motion for rehearing the plaintiff in error suggests a diminution of the record, and attaches to his motion a copy of the affidavit of illegality filed by the plaintiff in error in the court below, a copy of the traverse of the affidavit of illegality, and a copy of exceptions pendente lite filed by plaintiff in error to the rulings of the court denying a continuance of the case. There was no motion for a new trial, and the only assignment of error in the original bill of exceptions was on the judgment, quoted in full in the original opinion, dismissing the affidavit of illegality. In the original bill of exceptions there was no reference to the ruling excepted to in the exceptions pendente lite, and no error was assigned in the main
While the affidavit of illegality might indicate that the plaintiff in error had a meritorious case, assuming that the allegations of fact therein were true, the record entirely fails to disclose any error on the part of the court in dismissing it. Indeed, the additional facts stated in the motion for rehearing and the exhibits attached thereto tend rather to show that the ruling of the court was proper than to show that it was error. According to the showing now sought to be made, the defendant in fi. fa. was not present in court at all, although represented by counsel. The court overruled a motion to continue on account of the absence of the defendant in fi. fa., and ordered the case to trial. Thus the record, of which amendment is now sought, indicates that issue was actually joined by the plaintiff in fi. fa. upon the affirmative allegation of payment made in the affidavit of illegality, that the plaintiff announced ready, and that the defendant in fi. fa. failed to proceed. In these circumstances, even assuming that it was necessary for the plaintiff in fi. fa. to make out a prima facie case in view of the affirmative defense set up by the affidavit of illegality (James v. Edward Thompson Co., supra), it was not necessary for the court to require him to do so before dismissing the affidavit of illegality upon the defendant “failing to proceed,” as the order of the court recites.
Rehearing denied.