Manley v. Mobley

Hill, J.

(After stating the foregoing facts.) The affidavit of illegality is quite lengthy. There are two controlling questions which are urged and insisted upon in the brief of counsel for plaintiff in error, viz., the constitutional questions; and the question of the validity of the assessment, and the execution issued and signed by “A. B. Mobley, superintendent of banks, by W. J. Davis, general agent,” it being argued that no one had authority to make the assessment and issue the execution except the superintendent of banks. See Butler v. Mobley, 170 Ga. 26S (8) (152 S. E. 229), where the constitutionality of the act in question was upheld by a divided court. That case involved the identical assessment for the same bank ■ against a different stockholder. Substantially the same questions were raised as are made in the present case; and it was held: “In paragraph 1 of the affidavit of illegality it is contended that the execution was void, because issued upon an assessment made by W. J. Davis as general agent of the superintendent of banks, rather than by the superintendent. The notice of the assessment in this case was signed, ‘T. R. Bennett, Superintendent of Banks, by W. J. Davis, General Agent/ etc. The notice imports that the assessment was made by the superintendent. The recitals contained in the execution import that they were made by the superintendent. The execution was signed, ‘A. B. Mobley, Superintendent of Banks, by W. J. Davis, General Agent/ etc. There is no evidence requiring a finding that the superintendent did not make the assessment. Under these circumstances, in view of the presumption that the superintendent did his duty as required by law, the court did not err in admitting this execution in evidence. See McCaskill v. Chattahoochee Fertilizer Co., 167 Ga. 802 (146 S. E. 830); Bennett v. Cox, 167 Ga. 843 (146 S. E. 835); 22 R. C. L. 472, 474.”

As to the constitutional' questions raised in the present ease, the court stands evenly divided, as it did in the Butler case, supra. The three Justices who held with the plaintiff in error in the Butler ease adhere to their former view, and the three -other Justices hold to the contrary.

The burden was upon the affiant to support the allegations of the affidavit of illegality by proof, which she failed to do. Therefore the evidence authorized the verdict, and the judge did not err in overruling the motion for new trial.

Judgment affirmed. All the Justices concur, except