Allison v. Thomas

• Decision Date: 31 January 1872
• Citation: Allison v. Thomas, 44 Ga. 649 (Ga. 1872)
• Parties: JAMES A. ALLISON, administrator, plaintiff in error. v. HENRY R. THOMAS, executor, et al., defendant in error.
• Court: Georgia Supreme Court

44 Ga. 649

JAMES A. ALLISON, administrator, plaintiff in error. v. HENRY R. THOMAS, executor, et al., defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1872.)

Relief Acts 1870. Constitutional Law. Before Judge Harrell. Randolph Superior Court. May Term, 1871.

Allison, as administrator of Key, sued Thomas, as executor of J. W. Thomas, and Douglass, as security, upon their promissory note made in 1860. No defense was filed. But plaintiff had filed no affidavit of having paid the taxes on the debt, as required by the Relief Act of 1870. To excuse himself, he proposed to prove that Key's estate owed nothing, and that two of his heirs-at-law were his widow and a minor, and contended that if the Acts were constitutional, which he denied, his case was excepted by its 14th section. The Court dis-missed the cause for want of said affidavit. That is assigned as error on said grounds.

Hood & Kiddoo, for plaintiff in error.

E. L. Douglass; C. B. Wooten, for defendant.

*MONTGOMERY, Judge.

The Court below dismissed this case for want of the tax affidavit required by the Relief Act of 1870, the suit being upon a note made before June, 1865. The plaintiff offered to show that the estate owed no debts, and that two of the heirs were a widow and minor, there being also adult heirs. The Court refused to let the proof be made. Plaintiff also objected to the dismissal on the ground that the Act of 1870 was contrary both to the Constitution of the United States and to that of Georgia.

The Court held the Act to be constitutional, and plaintiff excepted. Upon the hearing before this Court, counsel submitted the constitutional point without argument. And hence the decision in this case, as to that point, is placed upon the...