Doyle v. Donovan , 76 Ga. 44 ( 1886 )

Bland ford, Justice.

The only question of law in this case is, whether the claimant was entitled to open and conclude to the jury.

1. The burden was upon the plaintiff in execution at the opening of the case, and continued at the conclusion; the claimant did nothing, either by admissions or otherwise, to relieve plaintiff of these burdens; hence we think upon every principle of law and logic, that the plaintid should have been allowed to open and conclude to the jury, and that it is unfortunate for the practice in claim cases that the claimant should be allowed to open and conclude in any case, as the burden is on the plaintiff to show the property levied on subject to the fi. fa. throughout the case. We have alluded to this matter before, and the legislature should intervene.

2. The main question in the case is as to whether the claimant had notice of the mortgage of the plaintiff va.fi. fa. foreclosed in this case, and which had not been recorded. This is a question of fact alone, and the evidence of the witnesses introduced by the plaintiff was abundantly sufficient to establish such notice, notwithstanding claimant testified to the contrary.

There is no error in the several rulings of the court complained of.

Judgment affirmed.