Herrington v. Moore

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…