49 Ga. App. 831 | Ga. Ct. App. | 1934
1. Although, in an affidavit of illegality interposed by the defendant to a levy of an execution, it may not appear that the property levied on belonged to him, yet where the property as described in the affidavit is the same as described in the levy, and the property levied on is described in the levy as being property of the defendant in execution, the affidavit of illegality is not defective because of a failure of the defendant to allege specifically therein that the property belonged to him. Wactor v. Marshall, 102 Ga. 746 (29 S. E. 703); Oliver v. Rutland, 48 Ga. App. 326 (172 S. E. 660).
2. The levy of an execution can be legally made only upon property of the defendant, or upon property which at the time of the levy is found in his possession and is therefore presumably his. Since all public officers, in the discharge of the duties resting upon them by law, are presumed to perform their duties legally and according to the requirements of law, a recital by the levying officer in the entry of the levy, made upon an execution, that the property described in the levy was “levied on according to law,” is equivalent to an allegation that the property levied on belonged to the defendant in execution. Where the affidavit of illegality is otherwise regular and sets out a valid defense to the levy, it is error for the court to dismiss the affidavit of illegality upon the ground that it contains no allegation that the property levied on belonged to the defendant.
4. Upon the trial of the issue thus presented, which was whether the superintendent of banks, or some one by him legally authorized, made the assessment, evidence that the assessment upon which the execution issued was made by the general agent of the superintendent of banks, who under the law (Webb v. Hansard, 43 Ga. App. 246, 158 S. E. 452), had no authority to make the assessment, is sufficient to authorize the inference that the assessment upon which the execution issued was not made by the superintendent of banks or by some one by him legally authorized so to do. This is true notwithstanding there appears in evidence oral testimony of a person that he was present and heard the superintendent of banks make an assessment against the stockholder, and ' that the superintendent of banks, after getting “the figures” and getting “the audit,” said, “I assess the stockholders 100 per cent,” meaning the stockholders of the bank, and that he told the general agent “to issue executions against them for that amount.”
5. Applying the above rulings, the court did not err in admitting the evi