Houstoun v. Bradford & Ross

Citations

• 35 Fla. 490

Syllabus

<p>1. When an affidavit of illegality of the issuance of an execution has been filed and bond given as required by law, it is the-duty of the court to hear the proofs of the parties as to the facts stated in the affidavit and determine thereon, and a motion made by the plaint ff in execution, in order to dispose-of the question presented by the affidavit of illegality, to set it aside and that execution issue as proyided by law, involves a hearing upon the grounds stated m the affidavit, and under-such motion the court would not be restricted to the legal sufficiency of the affidavit as a pleading, but would be authorized to hear proof and determine whether the grounds stated in the-affidavit were true.</p> <p>2. In the absence of sufficient showing to the contrary, the presumption is that the decision of a court of general jurisdiction on matters before it is correct, and a decision of the Circuit Court granting the motion of plaintiff in execution to set aside an affidavit of illegality and for execution to issue as provided by law, in the absence of any showing by the record that the court did not determine from evidence before it the questions-presented by the affidavit, it can not be assumed that the-court dismissed the affidavit without a hearing thereon.</p>