Collins v. Hill

41 S.E. 678, 115 Ga. 465, 1902 Ga. LEXIS 453

• Court: Supreme Court of Georgia
• Decided: April 30, 1902
• Status: Published

Opinion

Cobb, J.

1. There can be no legal verdict in favor of the plaintiff in execution in a claim case unless there is introduced in evidence at the trial a valid, unsatisfied execution in favor of the plaintiff in execution against the defendant in execution. If the execution introduced in evidence is for any reason void, or if no execution is offered in evidence, the plaintiff in execution fails to make out his case, and the levy should be dismissed. Gunn v. McMichael, 68 Ga. 826 (2); Funkhouser v. Male, 110 Ga. 766(3), and cases cited.

2. When in the trial of a claim case the plaintiff in execution offers to introduce the execution in evidence, and upon objection to its introduction being made withdraws the same, and the evidence is closed without the execution being again offered, it is error to direct a verdict in favor of the plaintiff in execution ; the only proper judgment to be entered would be to dismiss the levy.

Judgment reversed.

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