Herrington v. Moore

Jenkins, P. J. This case arose upon an affidavit of illegality, based upon the ground that the fi. fa. was paid in full after the rendition of the judgment. The trial judge entered the following order in open court: “This case coming on regularly for trial and the plaintiff in ff. fa. announcing ready and the defendant in fi. fa. failing to proceed, the burden being upon him, it is ordered, considered, and adjudged that said within affidavit of illegality be dismissed, and same is dismissed for want of prosecution.” To this judgment exception is taken. It is a general rule that upon the trial of an affidavit of illegality the burden is upon the plaintiff in fi. fa. to make a prima facie case by putting in evidence an execution, fair on its face, and a legal levy thereon (James v. Edward Thompson Co., 17 Ga. App. 578 (2), 87 S. E. 842); but where an affidavit of illegality contains allegations of fact merely setting up affirmative defenses, in the [637] nature of confession and avoidance, upon issue being joined the burden of establishing them rests on the affiant. Thompson v. Fain, 139 Ga. 310 (77 S. E. 166). In order to obtain in this court a reversal of a judgment, the burden is upon the plaintiff in error to show both error and injury. Dillin v. United Roofing & Supply Co., 34 Ga. App. 316 (3), 319 (129 S. E. 573). Under the recitals of fact in the bill of exceptions and the record in this case, it must be assumed that issue had been joined by the plaintiff upon the affirmative allegation of payment, contained in the affidavit of illegality, and that the plaintiff in fi. fa. announced ready for trial, but the defendant in fi. fa. either failed to appear (Wade v. Wisenant, 86 Ga. 482, 12 S. E. 645), or else, being present, failed to announce ready, and thus declined to proceed with the trial. Walker v. O’Connor, 23 Ga. App. 22 (3) (97 S. E. 276). In either event, dismissal of the affidavit of illegality was proper. Even were it to be assumed that, upon the filing of the sole ground of affirmative defense that the fi. fa. under which the levy was made had been paid since the rendition , of the judgment, it was still incumbent upon the plaintiff to show a prima facie case by proving the fi. fa. and the levy, there is nothing in the record to indicate that the affidavit was dismissed because the defendant declined to assume the burden still resting upon the plaintiff, since the order recites that the plaintiff announced ready for trial and the defendant failed to proceed therewith. The order indicates, not that the defendant failed to assume the burden, but that he was either absent or refused to go on trial. Judgment affirmed. Stephens and Sutton, JJ., concur.