Payne v. Jordan, (No. 17619.)

• Decision Date: 12 May 1927
• Docket Number: (No. 17619.)
• Citation: 138 S.E. 262,36 Ga.App. 787
• Parties: PAYNE. v. JORDAN et al.
• Court: Georgia Court of Appeals

36 Ga.App. 787

138 S.E. 262

PAYNE.

v.JORDAN et al.

(No. 17619.)

Court of Appeals of Georgia,

Division No. 2.

May 12, 1927.

(Syllabus by Editorial Staff.)

Stephens, J., dissenting.

Error from Superior Court, Taylor County; C. F. McLaughlin, Judge.

Execution by A. J. Payne, administrator, against Pinkie Jordan and another, in which defendants filed affidavit of illegality. Affidavit was sustained, motion by plaintiff in fi. fa. for new trial was overruled, and plaintiff brings error. Affirmed.

Homer Beeland, of Reynolds, for plaintiff in error.

Syllabus Opinion by the Court.

BELL, J. An execution was levied upon certain property of the defendant in fi. fa., who interposed an affidavit of illegality. The case as thus made was submitted to the trial judge, to be determined by him without a jury, upon the following agreed facts:

"Defendant is the beneficiary under a policy in accordance with the provisions of the War Risk Insurance Act passed by Congress in the year 1917 [1914], and as such she receives checks monthly, the proceeds of which she invested in a house and lot located in the city of Reynolds, in said county; the same being the property levied upon as above referred to. No other money went into the purchase of said property except such funds as above referred to. We agree that the only issue in said case is whether or not the property in question being purchased with said funds is subject to said execution."

The court having rendered judgment sustaining the affidavit of illegality, and the mo tion of the plaintiff in fi. fa. for a new trial having been overruled, the plaintiff in fi fa. excepted. Held: Under the provisions of section 28 of the Act of Congress, known as the War Risk Insurance Act, approved Sept. 2, 1914, and amended June 25, 1918, c. 104, § 2, 40 Stat. (U. S. Comp. Stat. 1918, § 514nnn¹/₄, p. 1739), as construed by the Supreme Court of this state in Payne v. Jordan, 152 Ga. 367, 110 S. E. 4, there was no error in the judgment complained of. Compare Ober Co. v. Cochran, 118 Ga. 396, 45 S. E. 382, 98 Am. St. Rep. 118; Luthersville Banking Co. v. Hopkins, 12 Ga. App. 488, 77 S. E. 589; 39 Cyc. 528-543; and the state exemption laws (Civil Code 1910, §§ 3377, 3425).

Judgment affirmed.

JENKINS, P. J., concurs.

STEPHENS, J., dissents.