Bosworth v. Clark

• Decision Date: 28 February 1879
• Citation: 62 Ga. 287
• Parties: Bosworth. v. Clark.
• Court: Georgia Supreme Court

62 Ga. 287

Bosworth. v. Clark.

Supreme Court of the State of Georgia

(February Term, 1879.)

Claim. Execution. Practice in the Superior Court. Evidence. Practice in the Supreme Court. Before Judge Hillyer. Fulton Superior Court. September Term, 1878.

Clark, as the indorser who had paid off an execution against J. T. Lewis, principal, and T. M. Clark, indorser, in favor of Chandler, caused the same to be levied on certain *land as belonging to the principal. Bosworth claimed. The case was submitted to the court without a jury, by agreement. On the trial, claimant's counsel moved to quashthe fi. fa. on various grounds. The motion was overruled. Plaintiff\'s counsel put in evidence a deed from Jones et al. to A. F. Hurt; he then exhibited a subpoena duces tecum served on J. T. Lewis, calling on him to procure a deed from A. F. Hurt to said Lewis for the premises, and the affidavit of Lewis that he was not in possession of the deed, and thought it was lost. Claimant\'s counsel objected to this showing, because Lewis was a party, and not subject to the subpoena; the objection was overruled. Plaintiff\'s counsel exhibited a notice to procure this deed, served on claimant, and then offered secondary evidence of its contents. Claimant\'s counsel objected on the ground that proper diligence to procure the deed had not been used. In support of this idea be offered two deeds subsequent to the deed sought, one from Lewis to Bosworth, and one from Bosworth to Wallace. The court refused to consider them on the question of diligence alone, and held if they were introduced for one purpose they could be used for all purposes, and the onus would be shifted. The court overruled the objection to the secondary evidence, and admitted it. Possession in Hurt for more than seven years before sale to Lewis was shown. Claimant introduced no evidence. The court held the property subject, and claimant excepted.

The third division of the opinion reports itself.

T. P. Westmoreland, for plaintiff in error.

John Collier, for defendant, cited on secondary evidence, Code, secs. 3508, 3509. On motion to dismiss, 7 Ga., 258; 59 Ib., 781; 6 Ib., 410; 37 Ib., 12; Code, sec. 3939.

JACKSON, Justice.

1. It is not necessary to consider the various objections to *the execution in the view we take of the claimant's motion. Her motion was to quash the fi. fa. The motion should have been to exclude it as evidence when it was tendered as such, or to dismiss the levy. In a claim case, the only concern that the claimant has with the execution is to see that it does not touch his property; that it does not proceed illegally against it. Defendant in execution is not a party, and he might be willing for the fi. fa. to stand against him, or to be amended, or an alias to issue at once. He could move to quash on any legal ground, but not the claimant. His motion ought to be to withold the fi. fa., or reject it as evidence, or to dismiss the levy. The court was right to...