
    12495.
    Anestos v. Simons, alias Semans.
    Decided December 14, 1921.
    Garnishment from city court of Savannah — Judge Freeman. April 11, 1921.
    
      Alvan B. Rowe, William R. Sanderson, for plaintiff in error.
    
      Edwards & Lester, contra.
   Jenkins, P. J.

Judgment and execution were obtained against the principal and the surety on a bond. The surety, having paid to the creditor the amount due, took from him an assignment of the judgment and execution against the principal, and later levied the execution by process of garnishment. The principal defendant in fi. fa. filed an affidavit of illegality; upon the ground that he had turned over to the surety, as transferee of the fi. fa., a stock of goods and fruits in full and final settlement of all claims on account of the transferred judgment and execution, and upon the further ground that the wife of the principal defendant in fi. fa. had later settled the transferee’s claim by repurchasing the property from the transferee and fully paying therefor. On a trial of the issues raised by a traverse of the affidavit of illegality, the jury found for the defendant in fi. fa. and in favor of his defense of payment. Exception is taken to the court’s refusal to grant a new trial. Held, that the evidence, even excluding that which was objected to, demanded a verdict for the principal defendant in fi. fa. under his first and real defense that certain property had been delivered to the plaintiff as transferee of the fi. fa., in payment of the execution; and therefore the plaintiff cannot complain of the alleged error in admitting such additional evidence, or in instructing upon the superfluous matter set up in the affidavit of illegality, relative to the repurchase of the property and payment therefor.

Judgment affirmed.

Stephens and Hill, JJ., concur.  