MOORE v. PENN et al.

Supreme Court of Georgia1902-06-12

115 Ga. 796

Summary · law.co

Holding. The judgment overruling the certiorari petition is affirmed. The jury verdict in favor of the defendants was properly admitted and supported by conflicting evidence, and the plaintiff had no right to demand judicial interrogation of the jury regarding the grounds of their general verdict.

Moore held an execution against the Penns and sought to levy it on their real property. Before the levy, Moore filed an affidavit asserting that although the property was designated as a homestead, it remained subject to his execution under applicable law. The Penns countered with their own affidavit and the dispute proceeded to a jury trial in magistrate's court, resulting in a verdict favoring the Penns. Moore challenged this verdict by certiorari in superior court.

The superior court affirmed the jury's verdict. Moore argued that the Penns' schedule of exempted property was insufficiently described and that the general verdict lacked specificity regarding which grounds supported the Penns' position. However, the court rejected both contentions. Since Moore himself had asserted the homestead exemption in his affidavit, the Penns bore no burden to prove exemption; the sole issue was whether the property remained subject to execution notwithstanding exemption. The court further held that Moore had no entitlement to demand oral questioning of the jury about their reasoning and that the proper remedy for an overly general verdict would have been to request amendment before the jury dispersed. The conflicting testimony presented at trial adequately supported the jury's finding.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether evidence describing exempted property must meet a particular standard of identification
Whether a jury verdict in a homestead exemption dispute must specify which grounds of a counter-affidavit are sustained
Whether conflicting testimony supports a jury verdict in favor of defendants

Procedural posture

A certiorari petition challenging a magistrate's court jury verdict in favor of defendants was filed in superior court and dismissed, and Moore appealed that dismissal.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Lumpkin, P. J.

The judgment now under review is one overruling a certiorari. It appears from the record that M. C. Moore, who held against John Penn and Laura Penn an execution which had been issued from a justice’s court, caused the same to be levied on certain realty. Before having the levy made, the plaintiff had filed with the levying officer an affidavit reciting that this realty had been set apart as a homestead to the defendants, but that, for certain reasons set forth, it was nevertheless subject to his execution. This affidavit w*as based on the Civil Code, § 2850. The-defendants filed a counter-affidavit, as therein provided for; and the issue thus formed was on appeal tried by a jury in a magistrate’s court, and a verdict was rendered in favor of the defendants. The petition for certiorari complained of this verdict; and, so far as verified by the answer of the magistrate, presented for determination by the superior court the questions dealt with below.

At the trial in the justice’s court the defendants offered in evidence a schedule of exempted property, including both realty and personalty. The plaintiff objected thereto on the ground that the realty was not so described as to sufficiently identify it. The objection was overruled, and the evidence admitted. This ruling did not result prejudicially to the plaintiff. It was not incumbent onthe defendants to show that the property levied on had been exempted, this fact having been asserted in the plaintiff’s affidavit for the purpose of having the levy made, and the only issue in the-case being whether this property was or was not, though exempted, subject to the plaintiff’s execution for the reasons set forth in his affidavit. If in point of fact the property in question had never been exempted, there was no occasion for the plaintiff’s undertake ing to pursue the remedy provided for by the section of the code above cited.

The counter-affidavit set up various reasons why the execution should not be allowed to proceed. The verdict was a general one in favor of the defendants. It appears from the answer of the magistrate that “ before the jury dispersed, . . one of the plaintiff ’s counsel requested [him] to ask the jury upon what grounds’ they found the verdict,” but that the magistrate declined to comply with this request. If, under the facts of this case, the jury should, agreeably to the provisions of section 5330 of the Civil Code, have returned a verdict which showed “ upon which of the pleas ” their finding in favor of the defendants was based, the proper course to be pursued by the plaintiff was to request the magistrate to require the jury to retire and amend their verdict so as to make it show what ground or grounds of the counter-affidavit they thereby -sustained. Clearly, the plaintiff had no right to demand that the magistrate orally catechise the jury as to the reasons influencing them in returning a general verdict in favor of the defendants.

Complaint was also made that the verdict was contrary to the evidence. On this point it is sufficient to say that the testimony, while conflicting, fully warranted the jury’s finding.

Judgment affirmed.

All the Justices concurring, except Lewis, J., absent.