Adkins v. Baker

7 Ga. 56

• Court: Supreme Court of Georgia
• Decided: July 15, 1849
• Docket: No. 8
• Status: Published

Opinion

By the Court. —

Lumpkin, J.

delivering the opinion.

A preliminary motion is submitted by counsel for the defendant, to dismiss the writ of error, on the ground that the plaintiffs are strangers to the proceeding, and have no such interest in the judgment rendered in the Court below, as entitles them to interfere.

[1.] We think otherwise. They were judgment creditors, claiming the fund, which has been distributed by order of the Court, and if the money has been misapplied, and their rights prejudiced, they have a right to be heard.

Counsel for the other creditors moved to quash the executions in favor of Baker and Arnett—

1st. Because the pleadings no where show that a personal demand was made for payment- by the said Baker and Arnett, or their agents, of the owner or owners of the said steamboat Albany, and no name is set forth in the demand alleged to have been made.

2d. Because in the case of Felix G. Arnett, the bill of particulars appended to the petition, and referred to by it, is without date a!s to month or year.

The Court overruled the application, and the decision is excepted to.

[2.] 1. This ground is founded in a mistake as to the facts. The affidavits state, that Benjamin Griffin, David Vason, Henry Lockhart and William H. Young, are the owners of the steamboat Albany, against which this proceeding was instituted, and that payment was demanded of said owners. By referring to Butts and others vs. Cuthbertson, (6 Ga.Rep. 59,) upon the authority of which this case seems to have been brought up, it will be discovered, that the names of the owners are altogether omitted, and that the objection taken in the Superior Court,, and. sustained by this Court, was, •“ that neither the affidavit nor the process shows the names of the owners of the boat, nor any of them.”

[3.] 2. ltisinsisted,thatinasmuch as the Statute requires that the claim should be presented within twelve months after the time when it falls due, that this proceeding is defective, the bill of particulars being without date. But this uncertainty is supplied by the affidavit. The claimant swears, that the indebtedness accrued “ at and before” a certain time therein set forth, by comparing which with the date of the affidavit, it is ascertained that the application is within twelve months from the date of the indebtedness. *

It remains but to add, that upon both grounds the judgment is affirmed.