Daniels v. Mansfield

65 S.E.2d 32, 83 Ga. App. 805, 1951 Ga. App. LEXIS 966

• Court: Court of Appeals of Georgia
• Decided: May 4, 1951
• Docket: 33345
• Status: Published

Opinion

Worrill, J.

A judgment which provides that the plaintiff shall recover of the defendant a sum of money, and that the plaintiff shall have a lien against certain specified property of the defendant, is both a general and a special judgment, and the execution which follows the judgment anil commands that the sheriff make of the goods, chattels, lands, and tenements of the defendant, particularly of the property upon which the special lien was established, the sum for which the plaintiff had judgment, is also both general and special; and where, pending the levy of the execution, the plaintiff alters in a material particular the description contained in the execution of the particular property upon which the judgment established a lien, the special part of the execution, directing that the sheriff levy upon the specific property, is invalidated; but such special part, being severable from the general part, and the lien of the general judgment and the general directive of the execution still being of force, the sheriff may proceed to levy upon any properly of the defendant found and subject to levy, including the specific property described in the execution as altered by the plaintiff, notwithstanding such alteration made in the special part of the execution. See James v. Cooledge & Bro., 129 Ga. 860 (2, 3) (60 S. E. 182); Law v. Coleman, 173 Ga. 68 (2), 76 (159 S. E. 679); Shedden v. National Florence Crittenton Mission, 191 Ga. 428 (1) (12 S. E. 2d, 618). The trial court did not err in overruling the illegality to the execution on the ground that such alteration voided the execution.

Decided May 4, 1951.

Judgment affirmed.

Sutton, C. J., and Felton, J., concur. E. L. Smith, for plaintiff in error. Edwin L. Sterne, contra.