Cherokee Lodge v. White

Jackson, Justice. 1. The petition for certiorari alleged that thefi.fa. leA’ied was for fifty dollars; the ansiver does not set out the fi- fa. at all, nor does it appear by answer or petition that plaintiff in execution claimed any interest. The bill of exceptions sets out, it is true, that the fi.fa. was for fifty dollars and interest and costs, but it does not aver that the plaintiff was claiming any interest. So far as appears to us the plaintiff was pressing his y?, fa. for fifty dollars, and as it does not appear that the wagon was worth more than fifty dollars, the court was right not to dismiss the certiorari. Dykes vs. Woolsey, 62 Ga., 608. 2. The justice of the peace or notary was wrong in ruling that because the marriage took place prior to 1866, the date of the act vesting in married Avomen their OAvn acquisitions — therefore this woman from whom the claimant derived title to the wagon had no title to convey. If she got the money as her separate estate after 1866, no matter when she married, it Avas hers, and what she bought with it was hers, and she could convey good title. 57 Ga., 412. 3. Some of the acquisitions of the wife were made before, others after the act of 1866; and there Avas no positive proof that money acquired by her since the act of 1866 paid for the wagon. From the answer of the justice to the certiorari, she kept it mixed ; but as he decided broadly that if she married before 1866, it was all her husband’s, he did not necessarily pass on the doubtful question of what money paid for the wagon — Avhether that acquired before the act of 1866, which would make the wagon her husband’s, and subject it, if he had reduced to possession [745] the property that paid for it, or that acquired since the act of 1866, which would make it bers, no matter what he did about it. There being clear error on this legal point in the justice court against the plaintiff in certiorari, and it being the province of that court to decide on the question of fact, to-wit: what money of the wife was in this wagon — that she got before or that she got after the woman’s right act of 1866 — the superior court was right, in our judgment, to sustain the certiorari and send the case back for a new trial. Judgment affirmed.