McAlister v. Sanders

Court of Appeals of Georgia

McAlister v. Sanders

19 S.E.2d 923, 67 Ga. App. 279, 1942 Ga. App. LEXIS 376

CourtCourt of Appeals of Georgia

DecidedApril 20, 1942

Docket29500.

StatusPublished

This text of 19 S.E.2d 923 (McAlister v. Sanders) 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

McAlister v. Sanders, 19 S.E.2d 923, 67 Ga. App. 279, 1942 Ga. App. LEXIS 376 (Ga. Ct. App. 1942).

Pincite

Opinion

Gardner, J.

On June 9, 1937, K. D. Sanders caused to be issued a distress warrant against J. D. McAlister. A levy was made on a 1936 International pick-up truck, motor No. HD59198, found *280 in the possession of J. D. McAlister. J. D. McAlister filed a counter-affidavit in which he denied the indebtedness. On August 7, 1937, J. H. McAlister filed a claim to the truck. On March 33, 1938, a jury returned a verdict in favor of Sanders against J. D. McAlister for $89. On the same date the claim case of J. H. McAlister was tried, and a jury returned a verdict finding the truck subject to the levy. There was no motion for new trial in the claim case by J. H. McAlister, but J. D. McAlister filed a motion for new trial in the distress-warrant proceeding. The motion was overruled, and he excepted. This court reversed the judgment, because of the admission of certain testimony. On September 30, 1939, the issues in the distress-warrant proceeding were again tried and judgment was again rendered in favor of Sanders against J. D. McAlister for $89. A fi. fa. issued on this last judgment on April 11, 1940, against J. D. McAlister, and was levied on the same truck which had been seized when the distress warrant was issued. J. H. McAlister again filed a claim, which was dismissed on the ground that no sufficient bond was filed with the claim. Thereafter, on March 19, 1941, J. H. McAlister filed a second general claim for the truck in question. The attorney for Sanders filed a motion to dismiss on the ground of res judicata. The court sustained this motion and J. H. McAlister excepted.

Since there was no appeal from the judgment of March 33, 1938, finding the property subject, and since the question of title as between Sanders and the claimant, J. H. McAlister, had been adjudicated, and since the truck remained under levy from the time it was first levied on under the distress-warrant proceedings until the last claim was filed by J. H. McAlister, and since the record does not reveal anything to show in his claim or otherwise that he has acquired title since the jury found against him, he was not entitled to have the same issue tried again.

The judge did not err in sustaining the motion and dismissing the claim.

Judgment affirmed.

Broyles, O. J., and MacIntyre, J., concur.

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

Gardner, J.

On June 9, 1937, K. D. Sanders caused to be issued a distress warrant against J. D. McAlister. A levy was made on a 1936 International pick-up truck, motor No. HD59198, found *280 in the possession of J. D. McAlister. J. D. McAlister filed a counter-affidavit in which he denied the indebtedness. On August 7, 1937, J. H. McAlister filed a claim to the truck. On March 33, 1938, a jury returned a verdict in favor of Sanders against J. D. McAlister for $89. On the same date the claim case of J. H. McAlister was tried, and a jury returned a verdict finding the truck subject to the levy. There was no motion for new trial in the claim case by J. H. McAlister, but J. D. McAlister filed a motion for new trial in the distress-warrant proceeding. The motion was overruled, and he excepted. This court reversed the judgment, because of the admission of certain testimony. On September 30, 1939, the issues in the distress-warrant proceeding were again tried and judgment was again rendered in favor of Sanders against J. D. McAlister for $89. A fi. fa. issued on this last judgment on April 11, 1940, against J. D. McAlister, and was levied on the same truck which had been seized when the distress warrant was issued. J. H. McAlister again filed a claim, which was dismissed on the ground that no sufficient bond was filed with the claim. Thereafter, on March 19, 1941, J. H. McAlister filed a second general claim for the truck in question. The attorney for Sanders filed a motion to dismiss on the ground of res judicata. The court sustained this motion and J. H. McAlister excepted.

Since there was no appeal from the judgment of March 33, 1938, finding the property subject, and since the question of title as between Sanders and the claimant, J. H. McAlister, had been adjudicated, and since the truck remained under levy from the time it was first levied on under the distress-warrant proceedings until the last claim was filed by J. H. McAlister, and since the record does not reveal anything to show in his claim or otherwise that he has acquired title since the jury found against him, he was not entitled to have the same issue tried again.

The judge did not err in sustaining the motion and dismissing the claim.

Judgment affirmed.

Broyles, O. J., and MacIntyre, J., concur.

Cite This Page — Counsel Stack

Bluebook (online)

19 S.E.2d 923, 67 Ga. App. 279, 1942 Ga. App. LEXIS 376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcalister-v-sanders-gactapp-1942.