Braswell & Son v. McDaniel

74 Ga. 319 | Ga. | 1884

Jackson, Chief Justice.

This was an action of trover brought by McDaniel against Braswell & Son for the recovery of corn exempted by the plaintiff under section 2040 et seq. of the Code. Under the charge, a verdict was returned for the plaintiff, a new trial denied, and on that denial error is assigned.

1. This exemption, now found in section 2040 et seq. of the Code, originated in the act of 1822, and has now become a part of the constitution of 1877. In 13 Ga., 302, this court held that no form was necessary to procure such an exemption, which holding has never been disturbed since, so far as we are informed. Therefore, it is not necessary to set out in the application that the applicant is a debtor.

2. The application was properly made in the name of the husband and father. True, the statute declares that it is for the use of wife and children, and they might have brought the action, as ruled by this court; but so may he. In tools and professional library he uses them, and it would be strange if he could not sue. For their use, certainly he might sue for the corn, and the declaration was amendable to add his representative character. After verdict, being amendable, the defect, if any, is cured. 64 Ga., 747; 65 Id., 464.

3. No demand was necessary to show conversion.' The corn was in defendants’ crib, in his possession. Even if not, the facts show conversion. The defendants levied an attachment on the corn without any oath required bylaw to subject it as for purchase money, and seized it, carried it out of Gwinnett into Walton county and put it in their crib. Afterwards got judgment and had execution issued and levied on it in their own crib, and bought it themselves. So that it was not only in their possession, but tortiously so. No demand and refusal is necessary in such a case. 2 Ga. 116; 46 Id., 230.

4. Even in regular and larger homesteads and exemptions, where the applicant is the father, it is not necessary to allege that the property is his. Surely it is not, where no form at all is necessary. 67 Ga., 669 ; 68 Id., 489.

5. The entire proceedings of the defendants in trover to possess themselves of this corn were illegal and tortious, and in every view of it, the verdict restoring its value to the plaintiff must be upheld. It seems, however, that the jury gave more than seventy cents per bushel as the value of the corn. That is the only value proved in this record." The excess must be written off, and the verdict and judgment, so reduced, will stand.

6. The motion to dismiss is denied. The judge notified counsel in writing that he would hear the motion on the 17th instead of the 15th, unless they answered, one or both, that it was objectionable. .No answer was received, and both were present on the 17th, and no hurt was done.

Judgment affirmed.