Mumford v. King

46 Ga. 414

• Court: Supreme Court of Georgia
• Decided: July 15, 1872
• Status: Published

Opinion

Warner, Chief Justice.

This was an action brought by the plaintiff against the defendant as executor on an open account. The plaintiff had filed an affidavit of the payment of taxes, as required by the Act of 1870. On the trial of the case, the plaintiff offered to prove the payment of the taxes for the purpose of keeping, his suit in Court, as required by the provisions of the before recited Act. The defendant objected to his doing so, on the ground that his testator, one of the original parties to the contract sued on, was dead. The Court sustained the the objection and rejected the evidence; whereupon, the plaintiff excepted. In our judgment, the Court erred in rejecting the evidence of the plaintiff as to the payment of taxes on the debt. The plaintiff was not offered to prove anything in relation to the contract or cause of action in issue or on trial, but was simply offered to prove a fact required by the Act of 1870, to keep his case in Court — a matter outside of, and wholly independent of any contract made with the testator, or the merits of the cause of action in issue or on trial between the parties. The evidence offered was to prove a condition precedent, required by the Act of 1870, to enable the plaintiff to maintain his suit in Court.

Let the judgment of the Court below be reversed.