Thomas v. Wilkinson

65 Ga. 405

• Court: Supreme Court of Georgia
• Decided: September 15, 1880
• Status: Published

Opinion

Jackson, Chief Justice.

This bill was filed to enjoin the sale of certain lands as the property of W. W. Thomas, under executions controlled by U. B. Wilkinson- It was brought by the wife of Thomas on the ground that she owned an interest in the oldest of the fi. fas. to the amount of $965.00 and interest, put in it by her, and is brought against her husband and said Wilkinson. Wilkinson bought the fi. fa., she alleges, with knowledge of her interest; on the other hand, he denies all knowledge of any interest in her, but alleges that the sureties took up the fi. fa., that he, Wilkinson, paid them at the request of Thomas, the husband, and took control thereof against Thomas—that the fi. fa. had certain credits on it as paid by Thomas, and among them one of $965.00 which was paid to the sureties before he bought the fi. fa.-—-that he bought in good faith and to oblige Thomas, and would not have bought if he had known that the wife had any interest in the fi. fa. His answer is sustained by the deposition of one of the sureties, and the complainant’s case by the affidavit and answer of her husband. The complainant urged that the sale be restrained because she could not bid on account of her poverty, Wilkinson having control of the fi. fa., until she could contest her right as to an interest in the fi. fa. with Wilkinson.

The court granted the injunction so far as to order the monéy to the amount of her claim, with interest, to be held by the sheriff to answer her claim if found just, but directed the sale to proceed.

The court did not abuse its discretion in this order.

Of course, if the sheriff is not a party, he should be made one, as the order is to him to sell and to hold for future disposition a part of the proceeds of the sale.

Judgment affirmed.