Roberts v. Roland

101 S.E.2d 210, 96 Ga. App. 673, 1957 Ga. App. LEXIS 660

Opinion

Quillian, J.

While the' defendant in her answer did not admit receiving the money, she testified that the deceased gave the money to her. She further testified that she was entitled to retain that which was left after paying Hanley to provide a decent burial for the deceased. By this testimony she set up the affirmative defense that she was entitled to keep a part of the money. Having testified as to this affirmative defense the burden was on her to prove facts which would establish the defense. Jones v. Bank of Powder Springs, 31 Ga. App. 263 (120 S. E. 422); Cosmopolitan Life Ins. Co. v. Head, 23 Ga. App. 216 (98 S. E. 124); Williams v. Dennis, 38 Ga. App. 736 (145 S. E. 464); Higdon v. Williamson, 140 Ga. 187 (2) (78 S. E. 767); Wilson v. Wilson, 23 Ga. App. 94 (2) (97 S. E. 558). If the judge believed the defendant she would have been entitled to retain all money in excess of the price which Hanley charges for a decent burial. However, there was no evidence as to what it would have cost for Hanley to provide a decent burial; therefore, there was no method by which the judge could have determined the amount of money to which she was entitled. The defendant having failed to carry this burden the judge did not err in denying the motion for new trial.

Judgment affirmed.

Felton, C. J., and Nichols, J., concur.