Phelps v. Thurman

• Decision Date: 24 February 1885
• Citation: 74 Ga. 837
• Parties: PHELPS v. THURMAN.
• Court: Georgia Supreme Court

74 Ga. 837

PHELPS v. THURMAN.

Supreme Court of Georgia.

February 24, 1885

February Term, 1885.

[This case was argued at the last term, and the decision reserved.]

Where, to a suit to recover damages for the wrongful and malicious suing out and levying of a distress warrant, and the procuring of a warrant to dispossess plaintiff of certain premises, and actually dispossessing him thereunder, the defendant filed a plea in the following words: " And now comes the defendant, . . and for further plea in this behalf says that he was authorized by law to have the distress warrant and dispossessory warrant set out by plaintiff's declaration issued and put into effect or executed, and that the defendant was justified in taking out the same, and that he did so in the utmost good faith and without malice; and of this he puts himself upon the country," this was only a plea of the general issue, putting in issue the main allegations in the declaration, and was not such a plea of justification as gave the defendant the right to open and conclude. 69 Ga. 250; 72 Id., 217.

( a. ) The right to open and conclude to the jury is an important right, and the presumption is that the party to whom it has been improperly denied has been injured.

( b. ) No other error of material character appears in this case.

Judgment reversed.

BLANDFORD, Justice.