149 Ga. 64 | Ga. | 1919
An execution in favor of C. C. Chandler against Jane Smith was levied upon land to which Sallie Collins interposed her claim. The sheriff’s entry of levy, after describing the land, recites: “Defendant in possession of said property at the time of levy; defendant given written notice as required by law.” On the trial of the issue, and without objection so far as the record discloses, the plaintiff tendered in evidence the fi. fa. with the sheriff’s entry of levy thereon, and other evidence, both oral and documentary, tending to show that the defendant in fi. fa. was the owner of the land levied on, at the date of the judgment and at the date of the levy. Deeds were' introduced as follows: from Mrs. Addie E. Johnson to the defendant in fi. fa.; from defendant in fi. fa. to plaintiff in fi. fa.; and from plaintiff in fi. fa. to defendant in fi. fa. for the purpose of levy and sale; each of said deeds describing the land levied on. The claimant then introduced evidence tending to show that the deed from defendant in fi. fa. to plaintiff in fi. fa. was either a forgery or was obtained by fraud, and that prior to the judgment upon which execution issued Jane Smith sold and conveyed the land to the claimant, the claimant’s deed being properly recordéd. At the conclusion of the evidence for the claimant, evidence in rebuttal was offered and admitted on behalf of the plaintiff. The jury returned a verdict finding the property not subject. The plaintiff’s motion for a new trial was overruled, and he excepted.
The general grounds of the motion are abandoned. The sole assignment of error insisted upon is that the court erred in allowing the claimant to open and conclude the argument to the jury. The stage of the trial at which the court so ruled is not made clearly to appear. However, the amended motion for new trial, approved as true by the trial judge, recites: “The claimant did nothing in this case, by admitting, or in any other way, to change the burden of the proof from the plaintiff in fi. fa., the plaintiff being compelled to prove his entire ease.” In his order overruling the motion for new trial the learned judge stated: “It having appeared that the defendant in execution was in possession of the property, the right to open and conclude the argument was afforded to the claimant.” From the statement of facts it will be seen that the entry of the sheriff affirmatively-showed that the defendant in fi. fa. was “in possession of said
The evidence in this case was in sharp conflict, and did not demand a verdict for the. claimant. It requires, therefore, no argument to demonstrate that the right to open and conclude to the jury was in this case an important right; and under the ruling announced in Chapman v. A. & W. P. R. Co., 74 Ga. 547, “an improper denial of it will work a reversal.”
Judgment reversed.