The Cherokee Lodge v. White

• Decision Date: 30 September 1879
• Parties: The Cherokee Lodge. v. White.
• Court: Georgia Supreme Court

63 Ga. 743

The Cherokee Lodge. v. White.

Supreme Court of the State of Georgia

(September Term, 1879.)

[Warner, Chief Justice, being engaged in presiding over the senate organized as a court of impeachment, did not sit in this case.]

Jurisdiction. Certiorari. Husband and wife. New trial. Before Judge Lester. Cobb Superior Court. November Term, 1878.

White filed his petition for certiorari against the Cherokee Lodge. The petition alleged that "a ft. fa. of fifty dollars, " based upon a justice court judgment rendered January 10, 1877, in favor of the Lodge v. Walker et al., was, on July 18, 1878, levied on a wagon, which was claimed by White; and that on the trial it was found subject. The ft. fa. is not copied in the record. In the bill of exceptions it is stated that it appeared to the court thatthe cause in the court below was "a claim case where a fi. fa. in favor of Cherokee Lodge v. J. M. Walker et al., for fifty dollars principal debt, with interest and cost of suit thereon, was levied, " etc.

From the petition and answer it appeared that White claimed by virtue of a purchase from Mrs. Walker, the wife of one of the defendants in fi. fa.; that her husband had bought the wagon for her with money furnished by her in 1874; and that she was married prior to the "married woman's act" of 1866. But the evidence left it doubtful whether the purchase money of the wagon came from sources arising for her before or after that act. The justice trying the claim case held that having married before the act of 1866, "no property received by the wife at any time, even subsequent to the act of 1866, can be her separate estate, except in trust." This ruling was alleged as error in the petition for certiorari. The value of the wagon was not shown.

Upon the hearing in the superior court, defendant in certiorari moved to dismiss the case because the amount involved was more than $50.00, and the remedy was by appeal. The court overruled the motion.

*The court sustained the certiorari, and ordered a new trial. Defendant in certiorari excepted.

W. T. & W. J. Winn, for plaintiff in error.

Clay & Irwin, for defendant.

Jackson, Justice.

1. The petition for certiorari alleged that the fi. fa. levied was for fifty dollars; the answer does not set out the fi. fa. at all, nor does it appear by answer or petition that plaintiff in execution claimed any interest. The bill of exceptions sets out, it is true, that the fi. fa. was for fifty dollars and interest and costs, but it does not aver that the plaintiff was claiming any interest. So far as appears to us the plaintiff was pressing his fi. fa. for fifty dollars, and as it does not appear that...