Aultman v. Aultman

23 Ga. 211

• Court: Supreme Court of Georgia
• Decided: June 15, 1857
• Status: Published

Opinion

By the Court. —

Benning, J.

delivering the opinion.

We regard the motion in this case, as an application by the executor, for leave to abandon his attempt to sell; and we regard the judgment, as an act of the Court granting that leave. In the ordinary claim case, it is common for the plaintiff fi. fa., to ask, and to receive, permission to dismiss his levy. The effect, in that case, is, to put an end to the cause; for, according to the construction which has been put upon the general claim Acts, the plaintiff in fi. fa. is the plaintiff in the ordinary claim case. And every reason that exists why, in the ordinary claim case, the plaintiff in,fi, fa, should have the right to abandon his attempt to sell, seems equally to exist, why in this kind of claim case, the executor should have the right to abandon his attempt to sell.

So, in like manner, every reason that exists why the plaintiff in fi.fa. should be considered, in the ordinary claim case, the plaintiff in the case, equally exists, why in this sort of claim case the executor should be considered, the plaintiff in the case.

And then the Act under which this sort of claim is put in has in it these words: “ and the right of property shall be .there tried, upon an issue made up, in the same manner and. tinder the like regulations, restrictions, and penalties, as are laid down in the judiciary for the trial of the right of property levied on under executions.” Cobb Dig. 316.

We think, then, that this sort of claim case is as much in the power ofthe executor, as the ordinarysort, is in the power of the plaintiff in the fi. fa.; and, therefore, we think, that the decision of the Court below was right.

Judgment affirmed.