Council v. Stevens

91 S.E. 286, 19 Ga. App. 250, 1917 Ga. App. LEXIS 81

Opinion

Bloodworth, J.

1. -When an execution has been levied and a claim to the property levied on has been interposed, the claimant has the legal right to withdraw or discontinue his claim once, “without the consent of the plaintiff in execution, or some person duly authorized to represent such plaintiff.” Civil Code (1910), § 5171; American Investment Co. v. Cable Co., 4 Ga. App. 106 (60 S. E. 1037).

2. Sections 5625 and 5626 of the Civil Code of 1910 (as to payment of costs or the filing of an affidavit in forma pauperis, where a plaintiff recommences his suit, after nonsuit, dismission, or discontinuance) do not apply to claim cases.

3. The court erred in overruling the demurrer to the original plea in abatement, and all proceedings thereafter were nugatory.

■Judgment reversed.

Broyles, P. J., and Jenlciits, J., concur. Ellis, Webb & Ellis, for plaintiff in error. J. B. Hoyl, Wallis & Wort, O. R. Winchester, contra.