Dixon v. Williams

9 S.E. 468, 82 Ga. 105

• Court: Supreme Court of Georgia
• Decided: March 1, 1889
• Status: Published

Opinion

Simmons, Justice.

It appears from the record in this case that Williams foreclosed his laborer’s lien against Potter and had the same levied on certain personal property. Potter made defence to the foreclosure aud denied the indebtedness, and denied that the plaintiff was a laborer, and also denied that any demand for the payment of the debt was ever made upon him. Upon this issue the jury found against him. Dixon interposed a claim to the property levied upon. On the trial of the claim case, the claimant moved to dismiss the affidavit, execution and levy upon the grounds set forth in the report of this case. This motion was overruled by the court. The plaintiff then tendered in evidence the affidavit of foreclosure, the execution and the levy. The claimant objected thereto on the same grounds'that he had before made in his motion to dismiss and quash the execution. This objection was overruled. The plaintiff introduced oral evidence to show that the property levied upon was, at the time of the levy, in possession of Potter, and that it was Potter’s property. The claimant, introduced no evidence. The jury found the property subject, and the claimant moved for a new trial, upon the following grounds : (1) error in refusing to dismiss the foreclosure proceedings ; (2) because the verdict was contrary to law and to the evidence; (8) error in admitting in evidence the affidavit, execution and levy. The court overruled the motion, and the claimant excepted.

1. There was no error in overruling the motion, on any of the grounds taken therein. The claimant had no right to move to dismiss the foreclosure proceedings. It was a matter that did not concern him whether the execution was legal or illegal, as between the plaintiff and the defendant in the execution. The only proper motion for him to have made at that stage of the trial, would have been to ■ dismiss the levy. If the court had granted his motion, it would have relieved his property (if it was his) from the execution. Gazan vs. Royce & Co. 78 Ga., 512, and cases cited.

2. There was no error in overruling the motion upon the second ground. There was sufficient evidence to authorize the finding of the jury that the property belonged to Potter, the defendant in execution. The claimant failed to introduce any evidence whatever denying that it was Potter’s property.

3. Nor was there any error in overruling the motion upon the third ground taken therein. In our opinion, all the necessary allegations were made in the affidavit to foreclose the lien. It did not seek to foreclose the lien in a summary manner against land, but against the property of the defendant, and the execution was levied upon personal property. In the ease of Snow vs. Council, 65 Ga. 123, relied on by counsel for the plaintiff in error, the laborer sought to foreclose not only upon the personal property, but upon land also, and the court dismissed the proceeding, holding that a laborer could not foreclose his lien in a summary manner upon land. If that case is well decided, it differs from this as above mentioned. The fact that the clerk, in issuing the execution, inserted therein “lands and tenements,” did not vitiate the execution. It was good at least against the personal property. Mitchell vs. Printup, 19 Ga. 579; Skipper vs. Chess-Carley Co., 76 Ga. 752.

Judgment affirmed.