Evans v. Equico Lessors

Court of Appeals of Georgia

Evans v. Equico Lessors

231 S.E.2d 534, 140 Ga. App. 583

CourtCourt of Appeals of Georgia

DecidedNovember 30, 1976

Docket52857; 52858

StatusPublished

Cited by2 cases

This text of 231 S.E.2d 534 (Evans v. Equico Lessors) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Evans v. Equico Lessors, 231 S.E.2d 534, 140 Ga. App. 583 (Ga. Ct. App. 1976).

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Opinion

Stolz, Judge.

The plaintiff brought his complaint alternatively under Code Chapters 67-7 and 61-3 seeking a writ of possession of personal property. The defense was based on these Code sections and the trial judge entered his decision and judgment by applying them. Neither Code provision is applicable. Code Ch. 67-7 deals with "Foreclosure of Mortgages on Personalty.” This case under its facts is not a foreclosure of a mortgage. Code Ch. 61-3 provides a dispossessory warrant proceeding in real estate disputes. This case is not a real estate dispute.

This case is simply a trover action and is controlled by Title 107 of the Code. It is a suit to recover possession of machinery leased to defendant for a term which had expired. Although defendant claimed he had purchased the machinery, he entered a solemn admission in judicio that he was "wrongfully withholding” the property from plaintiff. Defendant did this in his answer by admitting this allegation in plaintiffs complaint. One is bound by one’s admission in judicio. Kirkpatrick v. Faw, 184 Ga. 170, 177 (190 SE 566). Thus, by the defendant’s admitting a "wrongful withholding” of property in what is a trover action, a judgment is demanded for the plaintiff. See Small v. Wilson, 20 Ga. App. 674, 676 (93 SE 518) and Mitchell v. Ga. & A. R. Co., 111 Ga. 760 (36 SE 971).

That portion of the judgment granting possession of the property to plaintiff is affirmed. The remainder of the judgment is reversed.

Judgment affirmed in part and reversed in part.

Bell, C. J., and Clark, J., concur.

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Stolz, Judge.

The plaintiff brought his complaint alternatively under Code Chapters 67-7 and 61-3 seeking a writ of possession of personal property. The defense was based on these Code sections and the trial judge entered his decision and judgment by applying them. Neither Code provision is applicable. Code Ch. 67-7 deals with "Foreclosure of Mortgages on Personalty.” This case under its facts is not a foreclosure of a mortgage. Code Ch. 61-3 provides a dispossessory warrant proceeding in real estate disputes. This case is not a real estate dispute.

This case is simply a trover action and is controlled by Title 107 of the Code. It is a suit to recover possession of machinery leased to defendant for a term which had expired. Although defendant claimed he had purchased the machinery, he entered a solemn admission in judicio that he was "wrongfully withholding” the property from plaintiff. Defendant did this in his answer by admitting this allegation in plaintiffs complaint. One is bound by one’s admission in judicio. Kirkpatrick v. Faw, 184 Ga. 170, 177 (190 SE 566). Thus, by the defendant’s admitting a "wrongful withholding” of property in what is a trover action, a judgment is demanded for the plaintiff. See Small v. Wilson, 20 Ga. App. 674, 676 (93 SE 518) and Mitchell v. Ga. & A. R. Co., 111 Ga. 760 (36 SE 971).

That portion of the judgment granting possession of the property to plaintiff is affirmed. The remainder of the judgment is reversed.

Judgment affirmed in part and reversed in part.

Bell, C. J., and Clark, J., concur.

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Bluebook (online)

231 S.E.2d 534, 140 Ga. App. 583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-equico-lessors-gactapp-1976.

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