Newsome Lumber Co. v. Ramsey Motor Co.

136 S.E. 166, 36 Ga. App. 194, 1926 Ga. App. LEXIS 859

Opinion

Broyles, C. J.

This being an ordinary claim case, and the evidence demanding a finding that possession of the property levied on was not in the defendant in execution at the time of the levy, the burden was upon the plaintiff in execution to show either title in the defendant in execution or possession in the defendant since the date upon which the debt on which the execution was founded became a lien on the property. Knowles v. Jourdan, 61 Ga. 300 (1); Southern Mining Co. v. Brown, 107 Ga. 264 (2) (33 S. E. 73). The plaintiff in execution failed to carry this burden, and, therefore, the verdict in its favor was contrary to law and the evidence, and the refusal to grant the claimant’s motion for a new trial was error.

(a) The question whether or not the property was subject to the execution was the only triable issue in the case. No question'could legally be raised as to the liability of the claimant to pay the debt on which the execution was based. Southern Mining Co. v. Brown, supra; Liberty Lumber Co. v. Enecks, 23 Ga. App. 311 (1) (98 S. E. 97), and citations.

Judgment reversed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.