Almand v. Scott & Co.

11 S.E. 653, 83 Ga. 402, 1889 Ga. LEXIS 84

Opinion

Judgment affirmed.

On the same day, the same magistrate issued execution, stating the recitals in the affidavit mentioned, and commanding, “any lawful constable of the county,” of the entire crop of cotton raised and grown during 1884 by said Sims on the land described, to cause to be made by levy and sale said sum of $50 principal, with interest and cost, and to make return to tbe November term, 1884, of tbe justice’s court of the 476 district G. M., said county.” Tbe following entry of levy was made:

“I have this day executed the within distress warrant hy levying on one bale of cotton and seed out of the same as the property of Abe Sims. This November 6, 1884. W. A. Tyardlaw, L. C.”

A claim was- interposed by TI. P. & D. M. Almand. Tbe matter was returned to tbe justice’s court of tbe 475 district G. M., of said county, where a judgement was rendered by tbe magistrate, from wbicb judgement an appeal was taken to a jury in said court. When tbe case was called in its order, counsel for claimants moved to dismiss the levy for various reasons, wbicb were afterwards insisted on before tbe jury, and are hereinafter set out, but tbe court declined to entertain tbe motion on tbe ground that tbe case was on tbe appeal, and all questions of law and fact were for tbe jury.

Plaintiffs introduced tbe affidavit of foreclosure, tbe fi.fa. based thereon with the entry of levy mentioned, and the rent contract between Sims and Henderson with tbe transfer of tbe same. Also tbe following oral testimony : Wardlaw, L. C., testified that he was constable of the 476 district G. M. of said county, and that in. said district, on a road, be levied on a lot of cotton in tbe seed in tbe possession of Sims, wbicb was carried to Hammock & Parker’s gin at Conyers ; that he did not follow tbe cotton through tbe gin to see whether it was the identical cotton he earned there or not; and that claimants stated the cotton levied on was theirs, and filed their affidavit and gave bond for tbe same. I). P. Carr testified, for claimants, that tbe cotton levied on was raised by Sims on.land in tbe 476 district GL M. in the year 1884; that Sims made about four bales on said laud; that Sims lived in the 475 district; that witness saw him loading the cotton in the field in said district and on said lands in said district rented, and followed the wagon containing it and notified the bailiff, Wardlaw; and that witness, as agent for D. M. Parker and Scott & Co., made several demands on Sims for rent after the same became due, and before the foreclosure of the lien, which Sims refused to pay. D. M. Parker swore that he was agent for Scott & Co., and as such agent claimed the amount of rent due, and authorized Carr to make demand for the same after it became due; and that the cotton levied on by Wardlaw was carried to the gin. Both the last named witnesses testified that they did not know the cotton levied on to be the cotton claimed and in issue.

The evidence then closed and the counsel for claimants insisted before the jury that the claims should be sustained :

• (1) Because neither the affidavit of foreclosure nor the evidence show that demand for payment was made by the owner or his agent.

(2) Because the affidavit did not allege when the rent became due, nor whether it became due before foreclosure or not.

(3) Because there was no evidence that the cotton claimed was the cotton levied on, or that it was raised on the land in question.

(4) Because the evidence showed that Sims resided in the 475 district Gr. M., and not in the 476 district G-. M., to which latter district thefi. fa. was made returnable on its face.

(5) Because the law and the evidence demand a verdict for claimants.

It seems , that the jury at first returned a verdict or •made a verdict in favor of claimants, but they changed the verdict of their own motion, if changed at all, and explained that it was their intention to find the property subject to the fi. fa. and not subject to the claimants, which was done before the panel was dissolved, after which the jury were called and they all answered that it was their verdict to make said property subject as stated. Claimants carried the cause by certiorari to the superior court, alleging as error that the court below would not entertain their motion to dismiss the levy, that the verdict was contrary to the law and evidence, and that it was error to allow the change in the verdict. The certiorari was overruled, and the claimants excepted.

A. C. McCalla, for- plaintiffs in error. J. N. Glenn, contra.