34 Ga. App. 399 | Ga. Ct. App. | 1925
This was a claim case in which the court. directed a verdict in favor of the plaintiff in fi. fa. The claimant filed a motion for a new trial, which was granted, and the plaintiff in fi. fa. excepted.
Did the court err in granting the motion ? The plaintiff in fi. fa. procured a judgment against W. J. Marshall on February 4, 1924. Pursuant thereto execution was duly issued and entered upon the general execution docket on the same date. The execution bore an entry showing that on August 6, 1924, it was levied upon a certain automobile as the property of the defendant in fi. fa., found in his possession. The fi. fa., with the entries thereon, was introduced in evidence, and the plaintiff rested. W. B. Finch, in behalf of the claimant, then testified, “I know one certain car levied upon bearing the description of that car. It is a 1920 model Buick Sedan, closed car. I have a retention-title bill of sale to this car. W. B. Finch Motor Company has a retention-title bill of sale. That is in my possession. The car described in that paper is the same car levied upon in this case. It was levied upon by the sheriff. It was one Buick Sedan 1920 model.” No other evidence having been admitted, the court directed a verdict in favor of the plaintiff in fi. fa. When it appeared that at the time of the levy the defendant in fi. fa. was in possession of the property levied upon, the burden was upon the claimant to show his title. Civil Code-(1910), § 5170; Bartlett v. Russell, 41 Ga. 196 (1); Powell v. Westmoreland, 60 Ga. 572 (1); Greene v.
The legality of the judgment granting the motion will depend upon the merit of a lone special ground thereof, in which it was complained that the court erred in excluding from evidence the alleged conditional sale. There was set out in this ground
Judgment reversed.