6 S.E.2d 210 | Ga. Ct. App. | 1939
Lead Opinion
1. Where a claim is filed to property which has been levied on as the property of the defendant in fi. fa., the issue formed is between the plaintiff in fi. fa. and the claimant. In such a case where the verdict is against the claimant, the defendant in fi. fa. is not such a party to the action as that he may move for a new trial therein. The verdict so found does not determine the rights of the defendant.
2. A claimant who waits until after thirty days from the rendition of a verdict finding against his claim, can not then file a motion for new trial.
The court should have dismissed the motion for new trial. In the case of Anderson v. Wilson,
The defendant in fi. fa., Speed Oil Company, so far as appears from the record in this case, did not contest the levy. It was not in any substantial sense a party to the claim case. The plaintiff and the claimant were the parties to the trial in the claim case. The motion to substitute the claimant in the place of the defendant in the motion for new trial states: "it being the party against whom the judgment was had," and alleges that the defendant filed such motion in its behalf and for its benefit. Speed Oil Company was not a party to the claim case and could not file a motion for new trial therein. Any motion filed by it amounted to a nullity. It appears from the record that the verdict was returned January 19. If the motion to substitute filed by the claimant on February 25 be treated as a motion for new trial, it was more than thirty days after the rendition of the verdict and was too late. Hill v. O'Bryan,
The original motion filed by Speed Oil Company, being a nullity, *372 was not amendable. The motion filed by the claimant was filed considerably more than thirty days after the verdict and the court was without jurisdiction to hear it. The case is reversed on the cross-bill of exceptions and the main bill therefore will be dismissed.
Judgment reversed on the cross-bill of exceptions. Writ oferror on main bill dismissed. Broyles, C. J., and MacIntyre, J.,concur.
Addendum
The plaintiff in error also assigns error on its exceptions pendente lite. These complain that the court overruled its motion to dismiss the levy because it claimed it had shown by documentary evidence that the legal title to the property levied on was not in the defendant in fi. fa. It had admitted a prima facie case at the beginning and assumed the burden. "Where property has been levied on and a claim interposed, the claimant can not, for the purpose of protecting the property, show paramount title in a third person. . . A person who may have title to property or an interest therein, when a levy is made upon it, must interpose a claim in his own name, and can not defeat the levy by authorizing or directing an agent to file a claim as the owner." Rowland v. Gregg Son,
Rehearing denied. Broyles, C. J., and MacIntyre, J., concur.