Gatch v. Gilbert

158 S.E.2d 259, 116 Ga. App. 594, 1967 Ga. App. LEXIS 901

Opinion

Quillian, Judge.

The only question raised by the enumeration of errors was whether the grant of the nonsuit was error. The plaintiff’s evidence affirmatively showed that the retention of title contract was marked “paid” and the lien released by the bank prior to the marshal’s sale. Therefore, the plaintiff failed to produce prima facie evidence to support the material averment essential to his recovery that there was a superior encumbrance outstanding at the time of the marshal’s sale. Hence, the plaintiff did not prove the case as laid and the trial judge did not err in sustaining the motion for a nonsuit. Conner v. Bowdoin, 85 Ga. App. 231 (68 SE2d 619); Whitley v. Coleman, 207 Ga. 685 (4) (64 SE2d 67).

Judgment affirmed.

Jordan, P. J., and Deen, J., concur.