Juhan v. Robertson

152 S.E. 915, 41 Ga. App. 326, 1930 Ga. App. LEXIS 571

• Court: Court of Appeals of Georgia
• Decided: April 15, 1930
• Docket: 20303
• Status: Published

Opinion

Luke, J.

B. E. Juhan sued out an attachment against Roy Robertson for damages alleged to have arisen out of an automobile collision. The attachment execution was levied upon an automobile. Robertson denied all the material allegations of the attachment declaration, and asked for a judgment against Juhan for damage to his automobile, and for $5 per day as “reasonable hire for the lost use of said automobile.” Upon the trial of the case the jury rendered this verdict: “We, the jury, find for the defendant.” Upon this verdict the following judgment was entered: “Whereupon, it is considered, ordered and adjudged that defendant . . do have and recover of plaintiff the sum of $-costs for use of officers of court, and $10 storage charges incurred upon storage of the property levíéd upon in this case.” Juhan filed an affidavit of illegality, alleging that the execution issued upon the foregoing judgment and levied upon described realty had issued illegally and was proceeding illegally: (1) “Because said execution is based upon an invalid judgment, in that said judgment does not follow the verdict.” (2) “Because no storage was sued for and no money was paid out for storage.” On motion the court dismissed the affidavit of illegality and ordered that the levy proceed.

In Eskind v. Harvey, supra, it is said: “A party cast in a suit is liable for all costs, and when the law omits to prescribe the amount, as in a case where property has been seized under process, the necessary and reasonable expense incurred by the sheriff in preserving and taking care of the property is to be awarded by the court.” Under this rule, the court did not err in dismissing the affidavit of illegality.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.