Liberty Lumber Co. v. Enecks

98 S.E. 97, 23 Ga. App. 311, 1919 Ga. App. LEXIS 102

Opinion

Bboyees, P. J.

1. In an ordinary claim ease the claimant is entitled to a verdict in his favor if he shows title in himself, and the question whether he is liable to pay the debt on which the execution is founded is not properly triable in the ease. The question is not as to the claimant’s liability for the debt, but as to his title to the property levied on. By filing his claim he asserts merely that the property is not subject to sale under the execution. In such a case, in the absence of a suitable amendment or of proper equitable pleas, the plaintiff in fi. fa. can not introduce evidence which tends to show merely that in good conscience and equity the claimant is liable for the debt. Civil Code, 5407-8-9-12; Gormerly v. Chapman, 51 Ga. 421; Hamberger v. Easter, 57 Ga. 72; Ford v. Holloway, 112 Ga. 851 (38 S. E. 373); Southern Mining Co. v. Brown, 107 Ga. 264, 269 (33 S. E. 73).

Decided January 23, 1919.

Levy and claim; from Screven superior court—Judge Hardeman. March 21, 1918.

M. R. Lufburrow, for plaintiff in error.

2. Under the foregoing ruling, the court erred, in admitting, over the claimant’s timely and appropriate objections, the evidence set forth in the first special ground of the motion for a new trial;

Judgment reversed.

Bloodworth and Stephens, JJ., concur.