Jones v. McCowen

Court of Appeals of Georgia

Jones v. McCowen

131 S.E. 290, 34 Ga. App. 801, 1926 Ga. App. LEXIS 48

CourtCourt of Appeals of Georgia

DecidedJanuary 14, 1926

Docket16605

StatusPublished

Cited by9 cases

This text of 131 S.E. 290 (Jones v. McCowen) 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

Jones v. McCowen, 131 S.E. 290, 34 Ga. App. 801, 1926 Ga. App. LEXIS 48 (Ga. Ct. App. 1926).

Pincite

Opinion

Jenkins, P. J.

1. A plaintiff in trover must recover on the strength of his own title and right of possession to the property involved, and not that of another. Where a minor child labors and earns money, the presumption is that the proceeds of his labor belongs, to his father, if living; and where it is claimed that such in fact belongs to the minor, that presumption must be overcome by proof of the fact that the father has, either expressly or impliedly, manumitted the minor so as to allow the proceeds of the labor to go to the minor. The plain[802]*802tiff minor, not having overcome such presumption, did not show title or right of possession to the property sued for. See, in this connection, Wolf v. East Tennessee &c. R. Co., 88 Ga. 210 (2) (14 S. E. 199); Smith v. Smith, 112 Ga. 351 (3) (37 S. E. 407); Culberson v. Alabama Construction Co., 127 Ga. 599 (2) (66 S. E. 765, 9 L. R. A. (N. S.) 411, 9 Ann. Cas. 507); Southern Railway Co. v. King, 136 Ga. 173 (1, 2) (70 S. E. 1109); Mock v. Neffler, 148 Ga. 25 (3), 27 (95 S. E. 673) ; Richter v. Virginia-Carolina Chemical Co., 1 Ga. App. 344 (2) (57 S. E. 939); Civil Code (1910), § 3021; 29 Cyc. 1655 (18).

Decided January 14, 1926. Hubert F. Bawls, for plaintiff. J. P. Burnett, for defendant.

2. A levying officer is not guilty of tortious conduct or conversion with reference to property which he levies upon and holds by virtue of such levy, under special process by the terms of which he is expressly commanded to levy upon and seize the very property involved. Such special process, if it appear fair and regular on its face, will be his protection in the premises. The constable, at the time the trover suit was instituted, having the property sued for in his possession under the levy of a chattel mortgage fi. fa., expressly describing such property, which appeared fair and regular on its face, was not guilty of a conversion, and for this additional reason was not liable in an action in trover. See, in this connection, Chipstead v. Porter, 63 Ga. 220; Jefferson v. Hartley, 81 Ga. 716, 718 (9 S. E. 174); Haslett v. Rodgers, 107 Ga. 239, 245 (33 S. E. 44) ; Williams v. Inman, 1 Ga. App. 321 (2), 324 (57 S. E. 1009) ; Geer v. Thompson, 4 Ga. App. 756 (2) (62 S. E. 500) ; Dunlap-Huckabee Auto Co. v. Central Georgia Automotive Co., 31 Ga. App. 617, 620 (122 S. E. 69).

Judgment affirmed.

Stephens and Bell, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Jenkins, P. J.

1. A plaintiff in trover must recover on the strength of his own title and right of possession to the property involved, and not that of another. Where a minor child labors and earns money, the presumption is that the proceeds of his labor belongs, to his father, if living; and where it is claimed that such in fact belongs to the minor, that presumption must be overcome by proof of the fact that the father has, either expressly or impliedly, manumitted the minor so as to allow the proceeds of the labor to go to the minor. The plain[802]*802tiff minor, not having overcome such presumption, did not show title or right of possession to the property sued for. See, in this connection, Wolf v. East Tennessee &c. R. Co., 88 Ga. 210 (2) (14 S. E. 199); Smith v. Smith, 112 Ga. 351 (3) (37 S. E. 407); Culberson v. Alabama Construction Co., 127 Ga. 599 (2) (66 S. E. 765, 9 L. R. A. (N. S.) 411, 9 Ann. Cas. 507); Southern Railway Co. v. King, 136 Ga. 173 (1, 2) (70 S. E. 1109); Mock v. Neffler, 148 Ga. 25 (3), 27 (95 S. E. 673) ; Richter v. Virginia-Carolina Chemical Co., 1 Ga. App. 344 (2) (57 S. E. 939); Civil Code (1910), § 3021; 29 Cyc. 1655 (18).

Decided January 14, 1926. Hubert F. Bawls, for plaintiff. J. P. Burnett, for defendant.

2. A levying officer is not guilty of tortious conduct or conversion with reference to property which he levies upon and holds by virtue of such levy, under special process by the terms of which he is expressly commanded to levy upon and seize the very property involved. Such special process, if it appear fair and regular on its face, will be his protection in the premises. The constable, at the time the trover suit was instituted, having the property sued for in his possession under the levy of a chattel mortgage fi. fa., expressly describing such property, which appeared fair and regular on its face, was not guilty of a conversion, and for this additional reason was not liable in an action in trover. See, in this connection, Chipstead v. Porter, 63 Ga. 220; Jefferson v. Hartley, 81 Ga. 716, 718 (9 S. E. 174); Haslett v. Rodgers, 107 Ga. 239, 245 (33 S. E. 44) ; Williams v. Inman, 1 Ga. App. 321 (2), 324 (57 S. E. 1009) ; Geer v. Thompson, 4 Ga. App. 756 (2) (62 S. E. 500) ; Dunlap-Huckabee Auto Co. v. Central Georgia Automotive Co., 31 Ga. App. 617, 620 (122 S. E. 69).

Judgment affirmed.

Stephens and Bell, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

131 S.E. 290, 34 Ga. App. 801, 1926 Ga. App. LEXIS 48, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-mccowen-gactapp-1926.

Opinion

Related

Cite This Page — Counsel Stack