Richardson v. Subers

• Decision Date: 18 March 1889
• Citation: 9 S.E. 172,82 Ga. 427
• Parties: RICHARDSON et al. v. SUBERS.
• Court: Georgia Supreme Court

9 S.E. 172

82 Ga. 427

RICHARDSON et al. v. SUBERS.

Supreme Court of Georgia

March 18, 1889

Error from superior court, Decatur county; BOWER, Judge.

Richardson & Co. recovered judgment against W. C. Subers, and levied on certain personal property in the possession of Subers. The latter's wife filed claim to the goods, and from a judgment in her favor plaintiffs brings error.

O. G Gurley, for plaintiffs in error.

D. A Russell and Donalson & Hawes, for defendant in error.

SIMMONS J.

It appears from the record in this case that W. C. Subers and K Donalson were partners in business in the city of Bainbridge under the firm name and style of W. C. Subers & Co. Subers became indebted to Donalson, and on the 23d of July, 1880, the firm was dissolved. Subers turned over the entire stock of goods to Donalson in payment of his indebtedness. On August 1, 1880, Donalson sold the same stock of goods to Mrs. W. M. Subers, the wife of W. C. Subers. Mrs. Subers gave her three promissory notes to Donalson for $500 each, payable at different times, in payment for said stock of goods, and assumed the outstanding indebtedness of W. C. Subers & Co., to the amount of $1,500. In order to secure the purchase money of the stock of goods, she gave a mortgage thereon to Donalson, and in order to secure the indebtedness of the late firm, which she had assumed, she gave a mortgage to Donalson on certain real estate which belonged to her, situate in the city of Bainbridge. Richardson & Co. obtained a judgment against W. C. Subers, January 21, 1884, and had execution issued thereon, which was levied by the sheriff upon a portion of the goods purchased by Mrs. Subers from Donalson. The sheriff's entry stated that W. C. Subers, the defendant in execution, was in possession of the goods at the time of the levy. Mrs. Subers filed a claim to the goods. On the trial of the claim case the foregoing facts, and others which it is not now necessary to mention, were put in evidence before the jury. The jury, under the charge of the court, found the property not subject. The plaintiffs in fl. fa. moved for a new trial, which was denied by the court, and they excepted. The grounds of the motion for a new trial are, in substance, that the evidence did not identify the goods levied on as a part of the goods purchased from Mrs. Subers; that the evidence failed to show that Mrs. Subers had any separate estate with which to buy property; and, in the absence of such evidence, the presumption was that the husband purchased the property, or it was purchased with his money; and that the court charged the jury that it was not necessary for Mrs. Subers to show from whom she derived the money, or the means employed, if any were employed, in the purchase of the property; and that the verdict was contrary to the evidence.

1. One of the main grounds relied on by counsel for the plaintiffs in error before us was that the court charged that it was not necessary for Mrs. Subers to show in what manner she obtained the money to purchase these goods; counsel contending that she being a married woman, it was incumbent...