Whitlock v. Michael

Supreme Court of Georgia

Whitlock v. Michael

58 S.E.2d 833, 206 Ga. 749, 1950 Ga. LEXIS 575

CourtSupreme Court of Georgia

DecidedApril 10, 1950

Docket16992

StatusPublished

Cited by2 cases

This text of 58 S.E.2d 833 (Whitlock v. Michael) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Whitlock v. Michael, 58 S.E.2d 833, 206 Ga. 749, 1950 Ga. LEXIS 575 (Ga. 1950).

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Opinion

Atkinson, Presiding Justice.

(After stating the foregoing facts.) The original entry of levy did not disclose in whose possession the property was found at the time of the levy, and therefore, under Code § 39-904, the burden of proof was upon the plaintiff in execution, and not upon the claimant. Singer Sewing Machine Co. v. Crawford, 34 Ga. App. 719 (3) (131 S. E. 103).

The amendment to the levy, which, by consent of counsel, was sought to be made a part of the record in this court, if given consideration as part of the record, would not change the status of the return of the original levy. While, under Code § 24-2815, the officer could amend his return of levy, yet, after the claim was filed and the papers returned to court, the return of levy could not be amended without permission of the court to do so. Smith v. Rothschild & Co., 13 Ga. App. 293 (4) (79 S. E. 88).

In view of the foregoing ruling, it is unnecessary to pass on other grounds of the motion for new trial.

Judgment reversed.

All the Justices concur.

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Atkinson, Presiding Justice.

(After stating the foregoing facts.) The original entry of levy did not disclose in whose possession the property was found at the time of the levy, and therefore, under Code § 39-904, the burden of proof was upon the plaintiff in execution, and not upon the claimant. Singer Sewing Machine Co. v. Crawford, 34 Ga. App. 719 (3) (131 S. E. 103).

The amendment to the levy, which, by consent of counsel, was sought to be made a part of the record in this court, if given consideration as part of the record, would not change the status of the return of the original levy. While, under Code § 24-2815, the officer could amend his return of levy, yet, after the claim was filed and the papers returned to court, the return of levy could not be amended without permission of the court to do so. Smith v. Rothschild & Co., 13 Ga. App. 293 (4) (79 S. E. 88).

In view of the foregoing ruling, it is unnecessary to pass on other grounds of the motion for new trial.

Judgment reversed.

All the Justices concur.

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Bluebook (online)

58 S.E.2d 833, 206 Ga. 749, 1950 Ga. LEXIS 575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitlock-v-michael-ga-1950.

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