Anderson v. Baker

• Decision Date: 31 August 1878
• Citation: 60 Ga. 600
• Parties: Anderson, executor. v. Baker.
• Court: Georgia Supreme Court

60 Ga. 600

Anderson, executor. v. Baker.

Supreme Court of the State of Georgia

(August Term, 1878.)

Title. Contracts. Trover. Onus probandi. Before Judge Hall. Rockdale Superior Court. October Adjourned Term, 1877.

Reported in the opinion.

Clark & Pace, for plaintiff in error.

J. J. Floyd; A. C. McCalla, for defendant.

*Jackson, Judge.

Newton Anderson brought trover to recover an execution from Daniel N. Baker. The jury, under the charge of the court, found for the defendant, when the plaintiff moved for a new trial, which was not granted, and the not granting it is the error assigned.

1. It is said that the verdict is contrary to the evidence and the principles of justice and equity. It appears that the execution is in the name of Stephen Mayfield, bearer, and Anderson, executor of Jesse L. Baker, brought trover for it. The misfortune to his case is that he shows no title to the execution. The Code, § 2776, declares that judgments and executions are negotiable by indorsement or written assignment. Mayfield does not indorse or assign in writing this execution to Jesse L. Baker, or to Anderson, his executor, so far as the record discloses the evidence; therefore there is no title to the execution in Baker, but it is in Mayfield. How then can the verdict be said to be against the evidence or the principles of justice?

2. But it is urged further, that Jesse L. Baker let the defendant, Daniel N. Baker, have the execution as collateral, and the court charged the jury that before he could recover it, the executor of Jesse L. must show that he had paid the debt Jesse L. owed Daniel N. Baker; and it is insisted in the motion for a new trial that this charge is error. If it were necessary to consider the point, on the idea that the plaintiff had a possessory title to such a paper, we should hold that the charge is right. Daniel N. got the paper from Jesse L., if it ever was his lawfully, for a particular purpose, to secure a certain debt, andbefore Jesse L., or his representative, could dispossess him of it, the onus is upon Jesse L. and his executor, to show that he converted it to some other purpose, or, in other words, that the debt to pay which it was turned over to Daniel N. had been paid, and that he was wrongfully holding on to it.

So we think, in any view of the case, the law was properly *given to the jury, and they found right; and the judgment is affirmed.