Scott v. Darien Motor Co.

Court of Appeals of Georgia

Scott v. Darien Motor Co.

163 S.E. 246, 45 Ga. App. 102, 1932 Ga. App. LEXIS 182

CourtCourt of Appeals of Georgia

DecidedMarch 2, 1932

Docket21253

StatusPublished

Cited by1 cases

This text of 163 S.E. 246 (Scott v. Darien Motor Co.) 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

Scott v. Darien Motor Co., 163 S.E. 246, 45 Ga. App. 102, 1932 Ga. App. LEXIS 182 (Ga. Ct. App. 1932).

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Opinion

Stephens, J.

1. An entry of levy, made upon an attachment by a levying officer, which recites that he has this day levied the attachment upon a described tract of land “as the properly of" the named defendant in attachment, and that written notice has been given to the tenant in possession, imports a lawful notice to the defendant of the issuance of the attachment and the levy and seizure of the property as provided in section 5079 of the Civil Code of 1910. Smith v. Brown, 96 Ga. 274 (23 S. E. 849); New England Mortgage Security Co. v. Watson, 99 Ga. 733 (27 S. E. 160) ; Hiles Carver Co. v. King, 109 Ga. 180 (34 S. E. 353) ; United Provisions Cor. v. Board of Missions, 33 Ga. App. 9 (124 S. E. 820).

2. Where to the levy of an execution upon land, issued on a judgment in an attachment against the defendant, there was interposed an affidavit of illegality in which it was alleged that the levy was proceeding illegally because the defendant “had not had her day in court, was never served with any process or other notice of the pendency of the suit whereon such execution is based,” and where, on a hearing upon the affidavit of illegality and a traverse thereto filed by the plaintiff in execution, it appeared that the return upon the levy of the attachment showed a valid service by seizure of the property as indicated in paragraph 1 above, and there was no traverse of this return, a judgment against the affidavit of illegality was demanded, and the court did not err in dismissing it upon the ground that there was no traverse of the officer’s return upon the levy of the attachment. Dozier v. Lamb, 59 Ga. 461; Cochran v. Whitworth, 21 Ga. App. 406 (94 S. E. 609) ; Webb v. Armour Fertilizer Works, 21 Ga. App. 409 (94 S. E. 610) ; Mason v. Stevens Warehouse Co., 43 Ga,. App. 375 (158 S. E. 631).

Judgment affirmed.

Jenkins, P. J., and-Bell, J., concur.

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Stephens, J.

1. An entry of levy, made upon an attachment by a levying officer, which recites that he has this day levied the attachment upon a described tract of land “as the properly of" the named defendant in attachment, and that written notice has been given to the tenant in possession, imports a lawful notice to the defendant of the issuance of the attachment and the levy and seizure of the property as provided in section 5079 of the Civil Code of 1910. Smith v. Brown, 96 Ga. 274 (23 S. E. 849); New England Mortgage Security Co. v. Watson, 99 Ga. 733 (27 S. E. 160) ; Hiles Carver Co. v. King, 109 Ga. 180 (34 S. E. 353) ; United Provisions Cor. v. Board of Missions, 33 Ga. App. 9 (124 S. E. 820).

2. Where to the levy of an execution upon land, issued on a judgment in an attachment against the defendant, there was interposed an affidavit of illegality in which it was alleged that the levy was proceeding illegally because the defendant “had not had her day in court, was never served with any process or other notice of the pendency of the suit whereon such execution is based,” and where, on a hearing upon the affidavit of illegality and a traverse thereto filed by the plaintiff in execution, it appeared that the return upon the levy of the attachment showed a valid service by seizure of the property as indicated in paragraph 1 above, and there was no traverse of this return, a judgment against the affidavit of illegality was demanded, and the court did not err in dismissing it upon the ground that there was no traverse of the officer’s return upon the levy of the attachment. Dozier v. Lamb, 59 Ga. 461; Cochran v. Whitworth, 21 Ga. App. 406 (94 S. E. 609) ; Webb v. Armour Fertilizer Works, 21 Ga. App. 409 (94 S. E. 610) ; Mason v. Stevens Warehouse Co., 43 Ga,. App. 375 (158 S. E. 631).

Judgment affirmed.

Jenkins, P. J., and-Bell, J., concur.

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163 S.E. 246, 45 Ga. App. 102, 1932 Ga. App. LEXIS 182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-darien-motor-co-gactapp-1932.

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