6 Ga. App. 6 | Ga. Ct. App. | 1909
The decision in this case is controlled by the rulings of the Supreme Court in Marchman v. Todd, 15 Ga. 25, and Manning v. Mitcherson, 69 Ga. 447 (47 Am. R. 764). The only point raised by the plaintiff in error is, that possessory warrant is not the proper remedy under the facts of the instant case, .and that for that reason the judge of the superior court erred in overruling the certiorari. The insistence of counsel for the plaintiff in error is that inasmuch as there was no “fraud, violence, seduction, or other like means” used by the plaintiff in error to get possession of the goods, the defendant in error should have instituted bail-trover. The decision of this court in Dennard v. Butler, 2 Ga. App. 198 (58 S. E. 297), is relied upon as authority. The ruling in that case, following several decisions of the Supreme Court, is that possessory warrant is not available as a remedy to recover personal property, where the defendant has obtained possession by the consent of the plaintiff. That decision is not in point, in a case where, according to the undisputed evidence, the possession of the property was acquired without the consent of the owner or former possessor. In that decision the rulings in Trotti v. Wyly, 77 Ga. 684, that, “unless it clearly appears that the defendant acquired possession in one of the modes inhibited by the [statute], there is nothing for the proceeding to rest on,” and that “under a possessory warrant there is no question as to the title or as to the right of possession, but the sole question is as to the manner in which the possession has been obtained by the do
The evidence in the present case was sufficient to authorize the conclusion on the part of the lower court that the plaintiff had never voluntarily parted with possession of her goods, and that they were obtained by the defendant to secure an indebtedness of the plaintiff’s husband or father, without her consent and without authority of law. There was no error in dismissing the certiorari. Judgment affirmed.