*1 error. Jr., Evans, for Randall Neal, Norman, contra. Henry Earle COMPANY v. UNITED FINANCE 36029. HOME MOTOR SALES. April 4, Caldwell, Claud R.

Henry Rubenstein, J. Max Heffernan, the claimant first trial of J. 1. On the this *2 Nichols, admission admitted that prima admitted a facie case. This purchaser of the conditional- plaintiff in fi. fa. was a fide bona and proper execution contract, necessarily admitted its sale plaintiff Georgia; otherwise the County, Richmond recordation facie On the second prima, a case. in fi. fa. could not have had proof burden assumed the trial, fi. fa. previous trial were not bind- admissions the claimant on (198 E. App. S. Georgia Moody, Ga. 252 ing. Power Co. v. 58 342).

2. The trial sustained the claimant’s strike copy from foreclosure a the conditional- affidavit contract, sale sustained the when claimant original duplicate-original in fi. and a fa. offered the contract in evidence. conditional-sale “Where a written contract a personal conditional sale of property is to be Georgia, enforced in the mode of attestation and record of the will be fixed contract the laws of this State.” Burgsteiner v. (4a) (117 Street-Overland Co., App. 30 Ga. 140 S. Springfield E. Simmons v. Atlantic App. 90 Bank, Ga. (83 56). S. E. 2d “Where requires the law shall attested as a personalty in order admit record, it to was not attested at all, actual record of it was nobody.” Cunningham notice to & Co. v. Cureton, 96 Ga. (23 (2) 420). An S. unattested is conditional-sale contract good between the or between maker parties, and a transferee. Ringgold Bank Publishing (6 Co., West 598). However, S. E. 2d Supreme as to third parties, (56 in the case Paschal, (2) said of Mize v. S. E. 2d 266): personal “Where property is sold and delivered with condition affixed to the sale that the title remain is to payment purchase-price, vendor until of reservation parties, embracing is third title unless the invalid contract duly attested, is reduced to writing, same recorded as by law.” prescribed See Smith Motor Car Co. v. also Universal 18). Co., 176 Credit Ga. 565 proof was the burden present where Therefore, the evidence shows fa., fi. and where plaintiff in contract was that the conditional-sale contradiction amounted to contract of such attested, where erred trial court not the whether or question nothing, respect the contracts motions with sustaining the claimant’s (which levy dismissing the immaterial, is since Stewart been demanded. nonsuit) would still have amounts to 986); Decatur (4) E.S. Mundy, 642). (120 S. E. App. 299 Bank v. 31 Ga. Thomason, con- Felton, J.,C. concurs. Quillian, J., specially. curs concurring specially. The conditional-sale J.,C. six months was foreclosed in within in this case

contract brought Georgia. property date the into from the An- ruling Hubbard v. the case be controlled should in Smith Motor drews & but *3 18), Co., 176 Ga. S. E. Car Co. v. Universal Credit the by saying that that case distinguished the Hubbard case executed duly where it was mortgage was recorded State case In the property was at time. Hubbard and where the that had to for the instrument to be valid it appear did not that it record of the instrument I cannot see how the recorded, so valid if it any make difference was another State could recordihg. The reference parties between such the in another mortgage having duly been recorded headnote to the opinion when the is not is immaterial based on State Smith Motor may the court the Car Co. fact. It be that the overlooked that which was foreclosed case the fact Armitage-Herschell Muscogee Co. v. Real Estate was a second and not 634), holding that mortgage. one an out-of- the out-of-State option foreclosing it etc., has the of within six mortgage, State taking foreclosing action it such it or some on as months or of certainly good as a notice as bringing This is trover. the fact it is not attested could instrument, that the probated the instrument could be make much difference as not expira- shape entitle it to record before the put in such or (On num- limit. fourth page, the of the six-months tion Rep. following bered, appears of there note: Code), (section 4270 “By the of the of act of decisions required by written to be announced are decided. thus announced synopses points The decisions of the delivering opinions Justices published them, are as the being Reporter. generally made Where the head-notes stated.”) Court, are made it is so head-notes Scoggins v. Hicks. plaintiff petitioned Ordinary Chattooga C. J. The alleged private way. to remove an obstruction from an The generally specially petition. defendant demurred to the The petition, objected an filed amendment to his which was defendant. The court overruled the to the allowance of the amendment and overruled the defendant’s renewed demurrers. The proceeded merits, case trial court found in favor of plaintiff. Superior Chattooga County, On certiorari to the Court of excepted judgments ordinary the defendant to the court on the objection finding plaintiff. demurrers and to the court’s superior certiorari, judgment The court dismissed the which was un- excepted ordinary to. The defendant then filed a motion in the court of judgment ordinary to set aside of the court rendered in the original hearing, ground that the renewed demurrers to the petition amended should have been sustained and the action dismissed. Held: judgment superior 1. The of the dismissing certiorari, unexcepted to and aside, has not been set became the law and is conclusive on the issues raised in said certiorari (Griffin Beasley, (2a), 500; Mayor 160 E.S. &c. Savan Monroe, (2), nah 95 S. therefore the court denying did not err in judgment. set aside the Quillian Nichols, JJ., concur. *4 April Farrar, Archibald A.

Bobby Lee Cook,