Mitchell v. Holden

Court of Appeals of Georgia

Mitchell v. Holden

199 S.E. 835, 58 Ga. App. 712, 1938 Ga. App. LEXIS 107

CourtCourt of Appeals of Georgia

DecidedNovember 10, 1938

Docket26950

StatusPublished

Cited by3 cases

This text of 199 S.E. 835 (Mitchell v. Holden) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Mitchell v. Holden, 199 S.E. 835, 58 Ga. App. 712, 1938 Ga. App. LEXIS 107 (Ga. Ct. App. 1938).

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Opinion

Broyles, C. J.

The motion of the defendant in error to dismiss the writ of error is without merit, and is denied.

'“The general rule is that the payments of taxes or other claims, made through ignorance of the law, or where the facts are all known, and there is no misplaced confidence, and no artifice, deception, or other fraudulent practice used by the other party, are deemed voluntary, and can not be recovered, unless made under an urgent and immediate necessity, or to release person or property from detention, or to prevent an immediate seizure of person or property.” Strachan Shipping Co. v. Savannah, 168 Ga. 309 (3), 314 (147 S. E. 555).

“Except where otherwise provided by statute, a party can not, by direct action or by way of set-off or counterclaim, recover money voluntarily paid with a full knowledge of all the facts, and without any fraud, duress, or extortion, although no obligation to make such payment existed.” 30 Cyc. 1298, VIII, A, 1.; Strachan case, supra.

Where one is sued and files a plea of set-off, in which he attempts to set off against the debt sued on certain claims assigned to him, and where the plea fails to state that the alleged assignment was in writing, the plea is subject to be dismissed on demurrer. Thornton v. Reeve, 41 Ga. App. 446 (153 S. E. 436), and cit.

Applying the foregoing rulings to the facts of the instant case, the plea of set-off was properly stricken on general demurrer; and the verdict and judgment in favor of the plaintiff were hot contrary to law.

Judgment affirmed.

MacIntyre and Guerry, JJ., conciur.

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Broyles, C. J.

The motion of the defendant in error to dismiss the writ of error is without merit, and is denied.

'“The general rule is that the payments of taxes or other claims, made through ignorance of the law, or where the facts are all known, and there is no misplaced confidence, and no artifice, deception, or other fraudulent practice used by the other party, are deemed voluntary, and can not be recovered, unless made under an urgent and immediate necessity, or to release person or property from detention, or to prevent an immediate seizure of person or property.” Strachan Shipping Co. v. Savannah, 168 Ga. 309 (3), 314 (147 S. E. 555).

“Except where otherwise provided by statute, a party can not, by direct action or by way of set-off or counterclaim, recover money voluntarily paid with a full knowledge of all the facts, and without any fraud, duress, or extortion, although no obligation to make such payment existed.” 30 Cyc. 1298, VIII, A, 1.; Strachan case, supra.

Where one is sued and files a plea of set-off, in which he attempts to set off against the debt sued on certain claims assigned to him, and where the plea fails to state that the alleged assignment was in writing, the plea is subject to be dismissed on demurrer. Thornton v. Reeve, 41 Ga. App. 446 (153 S. E. 436), and cit.

Applying the foregoing rulings to the facts of the instant case, the plea of set-off was properly stricken on general demurrer; and the verdict and judgment in favor of the plaintiff were hot contrary to law.

Judgment affirmed.

MacIntyre and Guerry, JJ., conciur.

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199 S.E. 835, 58 Ga. App. 712, 1938 Ga. App. LEXIS 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-holden-gactapp-1938.

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