Stewart v. Blalock-McCollum-Roberts Co.

76 S.E. 573, 139 Ga. 44, 1912 Ga. LEXIS 518

• Court: Supreme Court of Georgia
• Decided: November 20, 1912
• Status: Published

Opinion

Lumpkin, J.

The sheriff had in his hands a fund arising from the sale of property of a defendant in fi. fa. The Blalock-Mc-Collum-Roberts Company brought a money rule to have the fund applied to the payment of executions based on the foreclosure of a chattel mortgage and a common-law judgment respectively, both of which it had lodged with the sheriff. Mrs. L. B. Stewart also placed .with the sheriff a distress warrant. The movant filed an additional pleading, which it called “an intervention,” attacking the claim of Mrs. Stewart on the ground that the rent for which she caused the distress warrant to be issued had been paid. This should have been called an amendment, rather than an intervention, but the name is not material. No objection was raised as to a lack of formal allowance, and the ruling of the judge showed his approval. The jury found a general verdict in favor of the movant. The pleadings and evidence showed the nature and amount of the claims. The verdict must be given a reasonable intendment, and will not be avoided except from necessity. Civil Code, § 5927.

The defendant in fi. fa. made no defense to the distress warrant in the manner pointed 'out by law. As to him the holder of it could have applied thereto, so far as necessaiy, any part of the fund remaining after paying costs and the claims of the successful contestant, if any remained. It would perhaps be better for the judgment to so state, though the balance, if any, seems small. Direction is given that it be amended accordingly.

Judgment affirmed, with direction.

All the Justices concur.