Tippin v. Whitehead

Speer, Justice.

This is a claim case arising from the levy of a fi. fa. in favor of plaintiff in error vs. Elliott’s executors, which was levied on a lot of land, number 250, in the sixteenth district, third section of originally Cherokee now Bartow county, levied on as the property of John C. Elliott, deceased, to which property defendant in error interposed his claim. Under the .evidence and charge of the court, the jury found the property not subject. During the term counsel for plaintiff in- error moved the court to set aside the verdict and for a new trial, on the ground, first, that the court erred in charging the jury upon the trial of said case in substance and effect as follows: “ In the present state of the record as shown in evidence in the opinion of the court, the plaintiff’s judgment is void, and the jury should find the property not subject.” Second, that said verdict was against the weight of the evidence.

The motion for new. trial was overruled, .whereupon plaintiff excepted.-

In looking into the record in this case,, it appears that the suit upon which plaintiff’s ft. fa. and judgment were founded, was instituted to September term, 1867, of Bar-tow superior court, that at that .term the cause was marked in default-on the .docket, and no counsel’s' name was entered for the defense; that at the September term, 1868, a verdict was taken in said case, founded on a civil contract in which no defense was filed, and that a judgment was entered on said verdict signed by the attorney for plaintiff in said suit.

The constitution of 1868, section 5091 of the Code, provides, “The court shall render judgment without the verdict of a jury in all civil cases founded on contract where an issuable defense is not filed on oath.”

In this case — a civil case founded on a contract in which no issuable defense was filed under oath — a verdict was taken from a jury, and under the former rulings of this court we s.ee no error in the charge of the court upon these facts as shown by the record that the judgment rendered on said verdict was void. We find therefore no error in -the judgment overruling said motion for a new trial.

Let the judgment of the court below be affirmed.