58 Ga. 280 | Ga. | 1877
Bradford obtained a judgment against the Water Lot Company of the City of Columbus; execution was issued thereon and levied upon certain lots of land as the property of said company. The Eagle and Phœnix Manufacturing Company claimed these lots. On the trial of this claim case, the record of the judgment and execution was in evidence before the court and jury; whereupon counsel for the claimant moved to dismiss the levy upon the execution on the ground that the execution did not follow the judgment; the court sustained the motion and dismissed the levy, and the question before us, the plaintiff in fi.fa. having excepted, is, ought the levy to have been dismissed 1
The suit was against “ the Water Lot Company of the City of Columbus,” the judgment was entered up against “the Water Lot Company of the City of Columbus,” but the execution was against “the Water Lot Company” — leaving out the
There can be no doubt that the claimant may take advantage of any defect in the execution which the defendant could do; and whilst this defect was amendable it is clear that the levy must fall — Code, §3495 ; 52 Ga., 586 ; 6 Ga., 529.
Eor these reasons we are not prepared to hold that the claimant, the Eagle and Phoenix Manufacturing Company, is estopped by the failure of the "Water Lot Company of the City of Columbus to except to this fi.fa., though the former company may have owned a majority of stock in the latter company. "We think, therefore, that the court did not err in dismissing the levy.
Judgment affirmed.