Anderson v. Wilson , 45 Ga. 25 ( 1872 )

McCay, Judge.

1. We do not think the first section of the Act of October 13th, 1870, applies to plaintiffs in fi. fa. on the trial of a claim case. That section, as well as the second, third and fourth sections of the Act clearly contemplates plaintiffs seeking a judgment upon their claim. The whole language is inapplicable to a claim case; it is the claimant who brings a claim case into Court, and if the action is to be dismissed, it would be the claim that would fall. The levy is an independent thing; it is legitimate and lawful, after the affidavit is filed according to the fifth section. The issue is upon the liability of the property levied on to the lien of the judgment. True, the claimant may show that the fi. fa. is discharged, but he cannot go behind the judgment. We will not say that the claimant might not, by denying the truth of the affidavit, open the question as provided in section fifth of the Act, since as he may do this as an independent thing, there would seem to be no good reason why he might not make it a part of his claim case. But we are clear that if the affidavit has been made so as to authorize the levy, the plaintiff has a right to proceed with his levy, unless he is met with a counter-affidavit.

2. The proceeding in a claim case is peculiar — the real parties are the plaintiff and the claimant. It is their rights alone that are settled by the verdict. The defendant, if he has any interest at all, is interested with the plaintiff. He is not a party in any substantial sense. His admissions, as a general rule, are inadmissible for either party; his death does not abate the proceeding. If the claimant were to prove the fi. fa. paid off, it would still stand open against the defendant; the verdict of the jury would be no evidence for him.

We do not, therefore, think the exceptions in the Evidence Act apply in case of the death or insanity of a defendant in fi. fa. in a claim case.

We should hesitate much before we should exclude the party from testifying upon the payment of taxes on his claim because of the death of his opponent. The issue cannot be fairly said to be on any matter arising, or on trial between them. It is a preliminary investigation collateral to the main issue and not made by the pleadings. It is, too, a matter known, in fact, in most eases only to the plaintiff and can be proven only by him.

For these reasons we think the Court erred in dismissing the levy.

Judgment reversed.