Garr v. Boynton

66 S.E. 552, 7 Ga. App. 235, 1909 Ga. App. LEXIS 611

Opinion

PowEin, J.

1. Upon a certiorari from a justice’s court, where there has been no appeal to a jury, only questions of law can he considered. Toole v. Edmondson, 104 Ga. 783 (31 S. E. 25).

2. Even if a deed of assignment for the benefit of creditors is ever superior to a pre-existing lien for labor (though unforeclosed), it is not superior thereto where the assignee takes with notice of the lien and the laborer elects not to claim under the assignment. Carter v. Lipsey, 70 Ga. 417, 420; Camp v. Meyer, 47 Ga. 414, 425, 426.

Certiorari; from Fulton superior court — Judge Pendleton. July 13, 1909.

Submitted December 9, — Decided December 24, 1909. G. W. Brooks, for plaintiff. A. B. Bancker, for defendant.

3. There was evidence from which the magistrate could have found that the assignee took with notice of the plaintiff’s lien. Hence, the judge of the superior court erred in holding', as a matter of law (for there had been no appeal), that the assignment had priority over the lien. Judgment reversed.