Smith v. Wellborn , 73 Ga. 131 ( 1884 )

Jackson, Chief Justice.

[Wellborn brought suit in Bibb superior court against' W. L. and Nancy M, Burgay and sued out a summons of garnishment for G. W. Smith, of Houston county. The affidavit was headed, Georgia, Houston county,” the bond, “ Georgia, Bibb county;” both were attested by “ L. J. Thomas, J. P.,” who also issued the summons of garnishment, which was headed, “ Georgia, Houston county.” . The garnisheb answered on October 19,1880, that he owed W. L. Burgay nothing, but had made to Nancy M. two notes for the payment to her of certain cotton; that they were not due, and he did not know whether she still held them or had transferred them. On October 11. 1883, he amended his answer, alleging that he was not indebted to Nancy Burgay; that the notes to her constituted all the indebtedness that ever existed, if there was any; that she had brought suit against him on them, which had been dismissed, and the time for renewal had expired; that he delivered the cotton, under the direction of Nancy M., at certain warehouses, to remain there till the termination of this litigation; that it was burned without his fault, and he has a good defence against said Nancy M. The answer charges that, after the burning of the cotton, Nancy M. Burgay and Wellborn combined to defraud the garnishee; that the former ceased to defend the suit of Wellborn, and by consent, the latter took judgment for enough to cover the notes of Smith, agreeing that only a portion of the amount should be paid to Wellborn and the balance to Mrs. Burgay; that Mrs. Burgay did not owe Wellborn. On demurrer the amended answer was stricken.

On October 11,1883, Wellborn filed an issue or traverse to the answer, alleging that Nancy M. Burgay was the owner and holder of the notes from their date to the filing of the traverse; that Smith owed her $1,332.50 principal, as the value of the cotton specified in them; and that at the April term, 18S3, he (plaintiff)'obtained judgment against her.

It is unnecessary to detail the evidence. The jury found the following verdict:

“We, the jury, find that G. W. Smith is indebted to Nancy M. Burgay in the sum of thirteen hundred and thirty-two dollars and fifty cents as principal, with interest as follows, to-wit: On six hundred and seventeen dollars and fifty cents, from December 1, 1880, and interest on seven hundred and fifteen dollars and fifteen cents, ($715.15) from December 1, 1881.”

The garnishee moved for a new trial, which was refused, and he excepted.]