Battle v. Stephens

32 Ga. 25

• Court: Supreme Court of Georgia
• Decided: January 15, 1861
• Status: Published

Opinion

By the Court

Lumpkin, J.,

delivering the opinion.

Linton Stephens recovered judgment for $1,500 against Jesse B. Battle and John E. Evans, as principals, and Henry L. Battle as security. The execution issuing on the judgment, was levied on a house and lot in Amerieus, in January? 1860, as the property of Jesse B. Battle, and claimed by Walter T. Davenport. In March, thereafter, the ft. fa. was levied on a carriage and harness, as the property of the security, Henry L. Battle. At the April Term, 1860, of the Court, Davenport withdrew his claim, and in May, 1860, a month only afterwards, Henry L. Battle filed this bill, alleging various reasons why the creditor, Stephens, should be compelled to make his money out of Jesse B. Battle’s property, and that of the other principal. He infers, from the facts charged, that the debt is paid, and argues to show it might have been, and ought to have been satisfied. The difficulty is, he no where asserts that it was, except a $1,000, and that he admits he is able to prove without resorting to the conscience of the creditor for discovery.

But the main ground upon which he seeks to protect his property from sale is, that the house and lot which Davenport claimed is sufficient to discharge the execution after crediting it with the $1,000. Perhaps this is true, and that it will be sold, and the money so applied. The bill was filed before the plaintiff in fi. fa. had an opportunity of proceed-

ing with the levy. But suppose the creditor sees fit to sell the security’s property first, upon what principle will a Court of Equity interfere to prevent him ? We know of none. It is his legal right to do so. Believing, as we do, that there is no distinct allegation in the bill, that the execution is paid, and that the ground to which I have alluded is not sufficient to sustain the injunction, we affirm the order of the Court dissolving the injunction.

We take no notice of the complaint, that the counsel was cut off by the Court from concluding his argument upon the motion, as it is not supported in point of fact by his Honor, the Judge. He certifies, that he supposed the speech was finished; and I can well understand how there should be an honest mistake in this respect. I know, experimentally, that I am sometimes kept in painful suspense for several minutes, not being able to decide whether the argument is closed. In such a case, counsel should suggest that he desired to be heard further, and, of course, the Court would readily accord the privilege.

Judgment affirmed.