Williams v. Atwood

• Decision Date: 31 July 1874
• Citation: 52 Ga. 585
• Parties: Andrew J. Williams, executor, and Frances E. Albritton, executrix, plaintiffs in error. v. James A. Atwood et al.,defendants in error.
• Court: Georgia Supreme Court

52 Ga. 585

Andrew J. Williams, executor, and Frances E. Albritton, executrix, plaintiffs in error. v. James A. Atwood et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1874.)

(Trippe, Judge, was providentially prevented from presiding in this case.)

Executions. Evidence. Judgments. Practice in the Superior Court. Before Judge Clark. Sumter Superior Court. April Term, 1874.

For the facts of this case, see the decision.

*W. A. Hawkins, by J. A. Ansley; C. T. Goode, for plaintiffs in error.

Lanier & Anderson, by brief; Guerry & Son, for defendants.

WARNER, Chief Justice.

This was a claim case, and on the trial thereof the court, on motion of claimants' counsel, ruled out the plaintiffs' fi. fa. as evidence before the jury, and dismissed the levy; whereupon, the plaintiffs excepted. It appears from the evidence in the record that Black and Samuel R. Walker confessed judgment to Albritton at the April term, 1861, of Sumter superior court, for the sum of $15,000 00, reserving the right of appeal. An appeal was entered, and pending the appeal, Walker died, and his administrators were made parties in his stead. At the April term of the court, 1871, the appeal was dismissed. There does not appear to have been any judgment entered up on the confession of judgment made at the April term, 1861, either before the appeal was entered, or after the dismissal thereof. On the 12th of August, 1871, an execution was issued on the confession, we suppose, as there is no other judgment to be found in the record, commanding the sheriff to make the sum of $9,380 50 by levy and sale of the goods and chattels, lands and tenements of Robert C. Black, and Burmah Walker and James M. Walker, administrator and administratrix of Samuel R. Walker, deceased, to satisfy a judgment which Andrew J. Williams and Frances E. Albritton, executor and executrix of the estate of M. G. F. Albritton, deceased, recovered against Robert C. Black and Burmah Walker and James M. Walker, administrator and administratrix of the estate of Samuel R. Walker, deceased. The court ruled out the fi fa. because it did not follow the judgment, and did not authorize a levy on Samuel Walker's property.

1. Assuming that the confession would operate as a judgment, without a judgment having been entered up thereon, *still the fi. fa. does not follow the assumed judgment, either in amount or as to the parties, and was properly ruled out by the court on that ground. Code, section 3636...