Stancel v. Puryear

58 Ga. 445

Opinion

Warner, Chief Justice.

This case came before the court below on an appeal from a justice court, on the trial of an affidavit of illegality to an execution. The defendant stated in his affidavit, “ that to the best of his knowledge and belief, the above stated fi.fa. is proceeding against him illegally, for the following reasons, to-wit: because said fi. fa. has been settled and fully paid off.” The plaintiff in fi.fa. made a motion to dismiss the illegality, upon the ground that the affidavit was insufficient. The court sustained the motion, and the defendant excepted.

The defendant should have stated in his affidavit, that the fi.fa. had been settled and paid off, if such was the fact, so that an issue could have been formed thereon by the plaintiff, if he had desired to have done so. It would be very difficult for the plaintiff to traverse and controvert the defendant’s knowledge and belief that the fi.fa. -had been settled and paid off, especially when no facts were stated on which that knowledge and belief were founded. This case comes within the principle recognized and ruled in the following cases: Moore vs. Morris, 26 Ga. Rep., 649; Bryan vs. Ponder, 23 Ga. Rep., 480; Sharpe vs. Kennedy, 50 Ga. Rep., 208.

Let the. judgment of the court below be affirmed.