Dumas v. Barnesville Bank

36 Ga. App. 810 | Ga. Ct. App. | 1927

Bell, J.

This was a claim case which originated in a justice’s court and which was tried on appeal in the superior court. The jury found in favor of the plaintiff in fi. fa., and the claimant excepted to the overruling of his motion for a new trial, containing the usual general grounds only; The plaintiff in fi. fa. brought its action in the justice’s court against John Dumas on a promissory note, in which suit judgment was rendered for the plaintiff on April 4, 1934, the defendant, presumptively, having been served on or before March 34, 1934. The execution which was issued upon the judgment was levied upon two mules, the entry of levy showing that the property was found in the possession of the defendant in fi. fa. There was introduced in evidence in behalf of the claimant a bill of sale made by the defendant in fi. fa. to his son, Charlie Dumas, the claimant, covering the two mules in question. This bill of sale was executed on March 39, 1934, and purported to secure an indebtedness of $800 as evidenced by a note of even date, payable to the claimant and signed by the defendant in fi. fa. The only witness sworn was the claimant’s mother, the wife of'the defendant in fi. fa. She testified: “My son Charlie Dumas lives in Dayton, Ohio, and has been for the past three years. He loaned his father, John Dumas, some money and John Dumas gave him this paper (which was exhibited to the witness) to secure him. The mules levied upon in this fi. fa. are the same mules that are described in this paper. My son, Charlie Dumas, sent me this paper and instructed ine to file the claim to the mules for him after they were levied upon by the sheriff. I was sworn as a witness on the trial of this case in the justice court, and John Dumas was also sworn. Charlie Dumas has lived in Dayton since 1923. John Dumas bought the mules, and they have been in his possession all the time, but we all worked and paid for them. I did not know that John had been sued until the mules were levied upon by the sheriff.”

It being shown by the entry of levy that the defendant in fi. fa. was in possession of the property at the time of the levy, the bur-dent of proof rested upon the claimant, and in order to carry this burden it was necessary for him to show, among other things, that he acted in good faith in the transaction between him and the defendant in fi. fa.

On the trial of a claim case, where the issue is the-bona fides of a transfer of property by the defendant in execution to the claimant, and where there are circumstances which, if not satisfactorily explained, may be regarded as badges of fraud, the findings of the jury on such issue can not be disturbed by this court on the general grounds only. Here the sequence of events and the relations of the parties were sufficient “badges of fraud” to make a case for determination by the jury. The evidence authorized the verdict, and the court did not err in refusing a new trial. Parsons v. Smith, 119 Ga. 42 (2) (45 S. E. 697); Kelley v. Stovall, 138 Ga. 186 (75 S. E. 6); Smith v. Hinkle, 136 Ga. 809 (72 S. E. 345); Stephens v. So. Cotton Oil Co., 147 Ga. 410 (3) (94 S. E. 245); Salsbury v. McNure, 30 Ga. App. 81 (116 S. E. 666); Greene v. Matthews, 31 Ga. App. 265 (6) (120 S. E. 434); Patterson Co. v. Peoples Loan & Savings Co., 158 Ga. 503, 507 (123 S. E. 704).

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.