Phillips v. Evans

165 S.E. 140, 45 Ga. App. 440, 1932 Ga. App. LEXIS 352

• Court: Court of Appeals of Georgia
• Decided: July 14, 1932
• Docket: 21967
• Status: Published

Opinion

Sutton, J.

1. A constable, charged with the levy of an execution issuing upon an affidavit to foreclose a chattel mortgage in a justice’s court, has no discretion but to execute it, and while he holds possession lawfully under levy of such execution he is not liable to be sued in trover by one claiming to be the owner of the property described in the chattel mortgage and so levied on. Smith v. Kershaw, 1 Ga. 259; Chipstead v. Porter, 63 Ga. 220; Haslett v. Rodgers, 107 Ga. 239, 245 (33 S. E. 44) ; Jones v. McCowen, 34 Ga. App. 801 (2) (131 S. E. 290).

2. In the instant case the constable levied an execution issuing upon an affidavit to foreclose a chattel mortgage in a justice’s court upon the property therein described, and was in possession thereunder. The plaintiff herein filed her claim thereto, which was determined against her. Thereupon she instituted trover against the constable and the mortgagee. Possession was not shown to be in the mortgagee, the evidence showing that he merely aided the levying officer in removing the property from the place where levied on to the automobile of the constable. In these circumstances, under the above ruling, the court did not err in directing a verdict for the defendants.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., conour.