Woodall v. Gossett & Son , 31 Ga. App. 797 ( 1924 )

Bell, J.

The issue in this case arose upon an affidavit of illegality alleging payment of the execution to which it was interposed, and an overpayment by mistake, the defendant praying to recover the excess. After verdict found for the plaintiffs in fi. fa. a motion of the defendant in fi. fa. for a new trial was refused, and he excepted. The motion was based solely upon the usual general grounds. The attorney for the plaintiff in error declares in his brief that “the only contested point in the case was whether the $250 receipt shown in the record was given for and represented one and the same payment as the check shown in the record for same amount, dated September 27, 1918,—the receipt being dated September 21, 1918.” It appears in the evidence that the defendant in fi. fa. introduced a receipt from the plaintiffs in fi. fa., dated September 21, 1918, for $250, and also a paid check drawn in favor of the plaintiffs in fi. fa., purporting upon its face to have been dated September 27, 1918, for a like sum, and contended that the receipt and the check each represented a separate payment, but that the plaintiffs in fi. fa. had not credited the amount of the check. The plaintiffs in fi. fa. on the other hand, contended that the check had been altered since its payment, that before the alteration it bore even date with the receipt, that the receipt was given for the check, and thus that both these documents related to a single transaction wherein the plaintiffs in fi. fa. received only the sum of $250. Each party supported his contention by evidence. The issue as thus made was one of fact to be determined by the jury. They having solved the issue in favor of the plaintiffs in fi. fa., and the trial court having approved the verdict, this court is without authority to interfere, the verdict being sufficiently supported by the evidence.

Judgment affirmed.'

Jenkins, P. J., and Stephens, J., concur.