Parish v. McLeod , 73 Ga. 123 ( 1884 )

Hall, Justice.

[Neil McLeod, as transferee of a fl.fa. of James Grubbs against BenjaminL. Kirkland and A. D. Laurence, caused it to be levied on certain land as the property of Laurence; and Leonora Parrish et al., children of the defendant in fl.fa., interposed a claim. (Such is the statement in the bill of exceptions, and the record contains a verdict in a claim case, but does not contain the claim itself.) The evidence as to the ownership and possession was somewhat conflicting, and need not be stated in detail. The following will serve to explain the rulings made: Suit was brought by James Grubbs against-Kirkland aud Laurence on a promissory note signed by both. No process appears attached to the record. Service was perfected on Kirkland by leaving a copy at his residence. Laurence was served personally. On October 1, 1866, appears a confession of judgment for both, signed by “John R. Prescott, deft, atty ,” and on October 3, 1866, judgment was signed against both defendants. On the present trial, defendant in fl.fa. denied that Prescott represented him. McLeod, the transferee, testified that th & fl.fa. was transferred to him by the administrator of Grubbs as insolvent paper; that it was purchased at private sale; that the transfer was on a separate piece of paper; that he had searched diligently for it and could not find it; that Grubbs’ administrator knew of the levy and authorizedit; that the ,fi.fa. was placed in the hands of the sheriff, and levied ; and that J. N. McLeod was to have $300.00 of the proceeds.

The jury found the property subject. Claimants moved for a new trial, because the verdict was contrary to law and evidence; because the fl.fa was admitted in evidence — -the objection being that the loss or destruction of the transfer was not shown, and that the sale of the fi. fa. was illegal, the requirements of §2558 of the Code not being complied with; and because there was no legal judgment on which the fi. fa. issued. The motion was overruled, and claimants excepted.]