Swinney v. Ragland
| Decision Date | 30 June 1857 |
| Docket Number | No. 7.,7. |
| Citation | 22 Ga. 570 |
| Parties | Ebenezer H. Swinney, plaintiff in error. vs. Wat-kins & Ragland, defendants in error. |
| Court | Georgia Supreme Court |
Debt on Ca. Sa. Bond, in Dougherty Superior Court. Decision by Judge Powers, at December Term, 1856.
James J. Green being arrested by virtue of a capias ad satisfaciendum, issued from the Superior Court of Dougherty county, at the suit of Watkins & Ragland, entered into bond, with Ebenezer H. Swinney as his surety, conditioned to ''appear at the next Term of said Superior Court, then and there to stand to and abide by such proceedings as may be had by the Court in relation to his taking the benefit of the act entitled 'An act for the relief of honest debtors, ' passed in the year 1823."
The bond was dated 25th January, 1856.
At the Term of the Court to which defendant according, to the bond, was to appear, to-wit: at June Term, 1856, when the case was called on the motion docket, Green was in the Court House, and answered to the case, and as the bill of exceptions states, "surrendered himself up in Court."
Upon motion, judgment was entered against him and Swinney, his surety, for the amount of the debt, and fi.fa. issued, which was levied upon a house and lot belonging to Swinney, who filed his affidavit of illegality, on the ground that the judgment and fi.fa. issued upon the ca. sa. bond of Green, when he "did appear and answer to the call, and |was in the Court House in the bar of the Court at the time judgment was entered; wherefore affiant says that judgment and execution are both fraudulent against him."
The Court held, that the ground taken in the affidavit was insufficient—overruled and dismissed the same, and ordered the fi.fa. to proceed; and counsel for Swinney, excepted.
Strozier & Slaughter, for plaintiffs in error.
Lyon, for defendant in error.
By the Court.—-Lumpkin, J. delivering the opinion.
J. J. Green having been arrested upon a ca. sa. at the instance of Watkins & Ragland, gave the usual bond, with E. H. Swinney as security for his appearance at the next Term of the Court, to take the benefit of the insolvent debtors' act. At that time an order was taken to enter up judgment upon the bond, against the principal and his security, upon the ground, that Green had failed to appear. An execution issued, and Swinney the security, arrested the proceeding by affidavit of illegality, in which it is alleged and sworn, that Green when called, did appear, and come within the bar of the...
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