Scruggs v. Gibson

45 Ga. 509

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

Opinion

Warner, Chief Justice.

The plaintiffs in the Court below brought an action on a promissory note -against the defendant, who filed a plea of set-off. On the trial of the case the plaintiffs made a motion to dismiss their own suit on the ground of their own default in not having filed an affidavit that all legal taxes had been paid on their own debt, as required by the Act of 1870. The defendant resisted the motion, on the ground that he had pleaded a set-off for a larger amount than the plaintiffs’ demand, and expressly waived any and all right to demand that an affidavit of payment of taxes should be made or filed, as required by the Act of 1870. The Court dismissed the plaintiffs’ action, and the defendant excepted.

In our judgment it was error for the Court to dismiss the plaintiffs’ action, on their own motion, against the' consent of the defendant, on the statement of facts disclosed in the record : Code, section 2856. Whatever else may be said of the Act of 1870, it cannot reasonably be claimed that it was intended to allow parties to take advantage of their own wrong.

Let the judgment of the Court below be reversed.