55 S.E.2d 846 | Ga. Ct. App. | 1949
1. The motion to dismiss the writ of error is denied.
2. The fact that the claimant objecting to the levy of an execution had previously filed a claim to the same property in behalf of a corporation, of which he was president and principal stockholder, and on a trial thereof had testified that the property belonged to the corporation, was not ground for dismissing his claim, as an individual, to the property where the jury on the first trial found the property subject, and the trial judge erred in refusing the claimant's motion to reinstate the claim.
3. Under the evidence and law applicable to this case a question for the jury was made as to whether the property was subject to the levy.
In support of the motion, the evidence showed substantially: that Jones, the claimant here, had on the previous occasion made affidavit on behalf of the corporation, and had alleged therein and had testified upon the trial, that the very property he claims in this case as his own individually, was the property of the corporation. The evidence further showed that in that case the jury found adversely to the claimant corporation's contentions, that is, found the property subject to the levy. The judge *224
sustained the plaintiff's motion to dismiss the claim, the claimant made a motion to reinstate it, and the court overruled that motion. That ruling is excepted to in this court.
1. The defendant in error moves in this court to dismiss the writ of error on two grounds, first that R. T. Grisson, the defendant in fi. fa., is an indispensable party who has not been made a party and has not acknowledged service, and neither has he been served as provided by law; and second that this case being brought to the appellate court upon a pretended motion to reinstate the case, such motion must be treated and considered as a motion for new trial. There is no merit in either of these grounds. The defendant in fi. fa. is not a necessary party. "Where a bill of exceptions is filed to proceedings had upon the trial of a claim case, the defendants in fi. fa. are not necessary parties." Graves v. Tift,
2. We think that the trial judge should have reinstated the claim of Jones because he erred in dismissing the claim in the first instance. "Presumptions of law are sometimes conclusive, and an averment to the contrary shall not be allowed. These are termed estoppels, and are not generally favored. Among these are . . solemn admissions made in judicio, and other admissions upon which other parties have acted, either to their own injury or the benefit of the persons making the admissions . ." Code, § 38-114. We do not think that Benson M. Jones in testifying as president and principal stockholder of the Longleaf Lumber Company in the first case testified in the same capacity, that is as a party at interest, as when he testified as an individual in this case, and we do not think that his testimony in that case can be said to preclude him from testifying differently in this case. In the first case the property was claimed by the corporation, Longleaf Lumber Company Inc., and in this case the property was claimed by Jones as an individual. Though one person owns the entire stock of a corporation, still, in law, the corporation and the individual are separate entities. A corporation is an artificial person created by law. Code, § 22-101. "This legal entity retains its separate and independent character, regardless of the ownership of its capital stock." Independent Gasoline Co. v.Bureau of Unemployment Compensation,
"There is one general rule, which is applicable alike to estoppel by record, by deed, and to equitable estoppel or estoppel in pais: That is that estoppels must be mutual. Strangers can neither take advantage of nor be bound by an estoppel; its binding effect is between the immediate parties, their privies in blood, in law and by estate." Harris Mitchell v. Amoskeag Lumber Co.,
Applying the foregoing rules of law to the facts of this case, we think it is plain that Jones cannot be bound or estopped by his testimony in the first claim case. He was not a party to it, and it adjudicated only that, as between Longleaf Lumber Company and the plaintiff in fi. fa., the property sought to be levied on was subject, and it had no question presented as to the rights of Jones as an individual to claim the property. It follows that the court erred in refusing to reinstate the claim of Jones.
3. Code § 39-902 provides for the trial of claim cases by jury, and § 39-904 provides that where the property levied on is shown at the time of the levy not to be in the possession of the defendant in fi. fa., as in this case, the burden of proof is on the plaintiff in fi. fa. Under the evidence and law applicable to this case there was at least a jury question as to whether the property levied on was subject to the levy, and the trial judge erred in dismissing the claimant's claim.
Judgment reversed. Sutton, C. J., and Felton, J., concur. *227