Fairburn Supply Co. v. Crumley-Sharp Hardware Co.

124 S.E. 67, 32 Ga. App. 520, 1924 Ga. App. LEXIS 521

• Court: Court of Appeals of Georgia
• Decided: July 22, 1924
• Docket: 15643
• Status: Published

Opinion

Bell, J.

1. There are at least three reasons why the first ground of the affidavit of illegality was properly stricken: (a) That one of the jurors before whom the original case was tried was related within the prohibited degree to a stockholder of the defendant corporation, the unsuccessful party therein, is no legal cause for complaint by such party after verdict, and would not have been sufficient ground even of a motion by it for a new trial, although not known to such party or its counsel until after verdict. Wright v. Smith, 104 Ga. 174 (30 S. E. 651); Screws v. Anderson, 124 Ga. 361 (4) (52 S. E. 429); Parker v. State, 146 Ga. 131 (90 S. E. 859). (b) An objection to the validity of a verdict and judgment upon the ground that one of the jurors rendering the verdict was disqualified because of relationship to one of the parties, whether the successful or the unsuccessful party, is not available by affidavit of illegality, even where the circumstances might have afforded ground for a new trial. McMillan v. Nichols, 62 Ga. 36; Rogers v. Felker, 77 Ga. 46; Jarrell v. Guann, 105 Ga. 139 (2) (31 S. E. 149); Mayor &c. of Brunswick v. Sims, 14 Ga. App. 315 (80 S. E. 730). (c)‘ “Before a verdict will be set aside because of the disqualification of a juror it must appear that the disqualification was unknown to the complaining party before the service of the juror” (Futch v. Quinn-Marshall Co., 14 Ga. App. 692 (2), 82 S. E. 55), such want of knowledge not being alleged in the affidavit of illegality in this case. Inter-Southern Life Insurance Co. v. McQuarie, 148 Ga. 233 (2) (96 S. E. 424); Holder v. Farmers Exchange Bank, 30 Ga. App. 400 (5) (118 S. E. 467).

2. “Bank cheeks are not payment until themselves paid.” Civil Code (1910), § 4314. “Without special authority, attorneys cannot receive anything in discharge of a client’s claim but the full amount in cash.” Civil Code (1910), § 4956. The second ground of the affidavit of illegality failed to allege that the check itself had been paid, but assuming that it sufficiently averred that the attorney for the plaintiff in fi. fa. had accepted the check as payment, it still does not show any cause for arresting the fi. fa., “the burden [being] upon the defendant to show the authority of the plaintiff’s attorney to make the settlement which [it] sets up as a satisfaction of the plaintiff’s claim,” and the affidavit having failed .to allege that the attorney had such authority or that the plaintiff in fi. fa. had ratified his act. Kaiser v. Hancock, 106 Ga. 217 (32 S. E. 123); Sonnebom v. Moore, 105 Ga. 497 (30 S. E. 947); Holland v. Mutual Fertilizer Co., 8 Ga. App. 714 (2) (70 S. E. 151); Jones v. Word, 23 Ga. App. 646 (99 S. E. 230); Johnson v. Starr Piano Co., 27 Ga. App. 425 (108 S. E. 811); Evans v. Atlantic National Bank, 147 Ga. 621 (3) (95 S. E. 219).

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.