Wallis v. Osteen

38 Ga. 250

• Court: Supreme Court of Georgia
• Decided: December 15, 1868
• Status: Published

Opinion

Warner, J.

The question made by the record in this case is, whether the plaintiff in the Court below could maintain his action of trover for the watch, against the defendants, without shewing title in himself thereto? The defendants had the possession of the watch, under the judgment of a Judge, or Justice, as provided by the 3959th section of the Code; that possession was, prima facie, lawful, as against the plaintiff, and to allow him to recover the watch from the defendants, on proof of his former possession alone, was but reopening the question of possession of the watch, which had been adjudicated under the possessory-warrant proceeding. The judgment in that proceeding determined the right of possession to the watch, as between the parties, to belong to the defendants. In order to deprive them of that lawful possession, thus acquired, the plaintiff, was bound to show something more than his former possession of the watch; he was bound to show a right to the present possession of the watch as against the defendants. . It he had shewn, by the evidence,' a general property in the watch, or title thereto in himself, then he would have shewn his right to the possession of it by construction of law, as against the defendants, who relied on their possession alone. See 2 Greenleaf’s Evidence, 528, section 640. We think the Court below erred, in holding that the plaintiff was entitled to recover the watch from the defendant, under the evidence in this case.

Let the judgment of the Court belpw be reversed.