Rhodes v. Harrison

60 Ga. 428

• Court: Supreme Court of Georgia
• Decided: January 15, 1878
• Status: Published

Opinion

Warner, Chief Justice.

This case came before the court below on an affidavit of illegality to an execution which had been levied on the defendant’s property, who alleged that the same had been paid off and discharged. The plaintiff in fi. fa. traversed the defendant’s affidavit, and upon the trial of the issue thus formed, it was proved on the part of the defendant that the plaintiff (who was the administrator of Jas. T. Hackney, and Mary Hackney, father and mother of defendant’s wife, who was married prior to 1866, Jas. T. Hackney having died in 1859,) had agreed to receive in payment of the balance due on said fi.fa. the amounts coming to him and his wife from the respective estates of Jas. T. and Mary Hackney, and that there were no debts due from either of the estates — and also offered to prove in connection with the foregoing testimony, the returns made by the plaintiff Harrison, as administrator de ionis non on the estate of Jas. T. Hackney, to show the amount received by him as such administrator, and the amounts due the heirs at law of said intestate by said Harrison as such administrator, which evidence so offered, the court ruled out on motion of plaintiff’s attorney, to which the defendant excepted, and now assigns the same as error. The jury then found a verdict for the plaintiff for $170.00, as the balance due on the execution.

1. 2. There was no error in ruling out the testimony offered by the defendant for the purpose of showing that the execution was paid off. The alleged agreement was merely executory and not binding upon either as to any definite amount, whereas the execution was for a definite amount. Besides, the execution was in favor of the administrator of Mary Hackney, and the testimony offered was the returns made by the administrator de bonis non of Jas. T. Hackney.

Let the judgment of the court below be affirmed.