132 Ga. App. 32 | Ga. Ct. App. | 1974
This case arose from an indebtedness on an open account for $4,664.28, allegedly due and owing by appellant to appellee, Rexall Drug Company. Appellant denied the indebtedness, admitting only that she was indebted to appellee in the sum of $21.63 for merchandise shipped to her subsequent to February 17,1972, when she took over the business pursuant to the terms of a decree of divorce obtained by D. H. Parker. Motions for a directed verdict at the conclusion of the appellee’s case and at the close of all the testimony were denied. The jury found for the plaintiff in the entire amount and ordered the debt to be paid by Mrs. Parker. An amended alternative motion for judgment notwithstanding the verdict or new trial also was denied and appeal followed.
In April of 1961, Mr. Parker entered into a franchise agreement with Rexall Drug Company. In August, 1966
In Enumerations of error 6 and 7, appellant complains that the trial court erred in refusing to grant the motions for a directed verdict, alleging a lack of proof that Mrs. Parker, the appellant, had assumed the debts of her former spouse.
The judgment and decree of divorce awarding the drug store to Mrs. Parker provided, in pertinent part, "Defendant shall take subject to all outstanding obligations growing out of said business, with the exception of one note to plaintiffs mother in the principal sum of approximately $3,000, which shall be assumed by plaintiff, defendant being responsible for the obligation and note due and payable to her mother.” (Emphasis supplied.) We do not believe that as a matter of law that
The Supreme Court of Wisconsin, in the parallel case of Klauser v. Reeves, 226 Wis. 305 (276 NW 356) (1937) stated: "Upon a division of property in a divorce action, the attempt is usually to ascertain and give to the wife a net share of her husband’s property. It is unlikely that a transfer subject to his debts would be for any other purpose than that of delimiting the amount of her share. This tends to repel the inference that a personal liability for debts of the husband was intended, but gives support to the inference that the property conveyed was to be subject to a lien or charge which would diminish its net
The evidence demanded a directed verdict for Mrs. Parker as a matter of law, except for $21.63 of the $4,664.28 claimed by appellee, Rexall Drug Company and admittedly owed by Mrs. Parker. Accordingly, the judgment is reversed with direction to enter a judgment in the amount of $21.63 in favor of appellee, Rexall Drug Company with costs consistent with Code § 24-3404, which by its terms applies to the superior court, but to which, in view of the Act establishing the City Court of Sylvania (Ga. L. 1913, p. 291 et seq.), now the State Court of Screven County, this section also applies.
Judgment reversed with direction.