Merriam v. City of Atlanta , 61 Ga. 222 ( 1878 )

Jackson, Justice.

This suit was brought by Merriam to recover $658.00 with interest, upon the ground that the city of Atlanta had transferred to plaintiff a tax fi.fa. against one John R. Wallace for that amount, which plaintiff alleged to be illegal and void ; the jury found for the plaintiff the value of the fi.fa. with interest, and thereupon the circuit court granted a new trial, and plaintiff excepted.

This court reluctantly interferes in any case with the first grant of a new trial; and will never do so unless it plainly appears that the law and evidence demanded the verdict. In this case that has not been plainly made to appear to us. On the contrary, land at the price of over two hundred dollars was sold under thefi. fa. alleged .to be illegal, to this plaintiff, and his title thereto seems to be good, because the execution was issued at the instance and by direction of Wallace who owned the saidland, and who would, we think, hardly be permitted to recover it back from this plaintiff. The verdict certainly looks wrong as to that part of the recovery, as no pretence is made that plaintiff has been ejected from or cannot hold this lot so bought. As to the remainder of the recovery, the court might well, we think, have it tried over, for the reason that the facts are quite complicated, and the question involved in doubt, whether or not the execution was not valid when the purchase of it was made. The other execution may not have covered everything which defendant really owed taxes upon, and he may have had this issued to supply the deficiency. At all events the other had not been paid when this was issued, and the tax was then owing to the city.

Be this as it may, the whole case is involved in trouble and doubt; the judge who tried it is dissatisfied with the verdict, and the elucidation of the truth and ends of justice would seem to demand a new trial. Therefore his discretion was not abused, and the judgment is affirmed.