4 Ga. App. 538 | Ga. Ct. App. | 1908
The sheriff of Grady county levied an execution, issued in pursuance of the foreclosure of a laborer’s lien in favor of Joe Cannon, upon certain personal property, as the property
Upon the trial of- the case the claimant testified, that certain lumber levied upon on the right of way of the Atlantic Coast Line Eailroad Company near Pine Park, and about 8,000 feet of lumber of W. S. Sherrod near Pine Park, which had been levied upon, belonged to him; that he had paid for it and it had actually been delivered to him sometime prior to the levy of the laborer’s lien. In accordance with the act of 1905 (Acts of 1905, p. 84), the judge certified to certain additional evidence to that related in the-original bill of exceptions, as follows: “The lumber covered, by my claim belongs to me, because I paid for sawing it, and it had actually been delivered to me, and was so delivered before I finished paying for it. In some instances I paid direct to the hands for the labor at Mr. Sherrod’s mill, by paying drafts drawn on me, payable to the hands. The lumber was delivered to me by Mr. Sherrod’s statement prior to my paying him anything. At that time the lumber was on the right of way of the Atlantic Coast Line Eailroad at Pine Park, with the exception of one car of about 8,000 feet, more or less, of 1x9, 9'-3" long. This, Mr. Sherrod represented to me, was cut and either stacked or piled at his mill. The car I paid Mr. Sherrod for was this particular lumber. I had nothing to do with the operation of the said sawmill. I had nothing to do with the employment of the hands. In some instances I paid them direct because Mr. Sherrod drew on me in their favor. I do not think that this was for cutting this particular timber. I rather think it was not. It was not on cars at time of levy. Mr. Sherrod was to load the lumber on,the cars at Pine Park, Ga. There was no count of the lumber before the levy, only by Mr. Sherrod. I don’t know exactly what it measured up, but, by checking furnished me by the parties who load it on ears for Mr. Sherrod, it was about 40,000 feet. The count made by Mr.
At the conclusion of the claimant’s testimony, the plaintiff in fi. fa. introduced, as a witness, Sherrod, the defendant in fi. fa. Though introduced in behalf of the plaintiff, Sherrod sustained the contention of the claimant, by testifying that the lumber in controversy had been paid for by Luke prior to the time of the levy, and the lumber itself delivered to Luke in consideration thereof. Thereupon counsel for the plaintiff in fi. fa. stated to the court, that he had been misled and entrapped by the witness, Sherrod, that the testimony of this witness was a surprise to him and contradictory to statements made to persons other than the plaintiff in fi. fa. or his counsel, and that these contradictory statements had been communicated to counsel for the plaintiff in fi. fa., and that he desired to introduce new testimony to impeach and contradict the testimony, of Sherrod. It does not appear from the original bill of exceptions that any foundation for the impeachment of this witness was laid, but it is certified, in the supplement to the bill of exceptions, that counsel for the plaintiff in fi. fa. asked Sherrod the following question: “Did you not, in the same room where this trial is being held, tell me that the lumber was not to be Luke’s lumber at all, but to be shipped to parties in Chicago, on orders given by them, and did you not show me said orders' and state to me, ‘1 guess this will show where it was to go and did you not make similar statements to D. K'. Collins and T. D. G-waltney?” To which the witness answered, “I do not recollect.” Whereupon the attorney for the plaintiff in fi. fa. stated in his place that he had been entrapped by the witness, Sherrod, by statements of the witness, previously made to him and to others, to the effect that the lumber was not to be Luke’s, but only the proceeds of the sale were to be his. Three witnesses were then introduced, who testified, that they had conversations with the witness Sherrod, concerning the title of the lumber levied upon, and that the conversations were after institution of the proceedings, and after the levy. To the testimony of each of these witnesses counsel for the claimant objected, upon the ground that the conversations with Sherrod were subsequent to the pendency of the
Counsel for the claimant also moved to exclude the testimony of Collins and Gwaltney, after it had been delivered; because the statements related, as having been made by Sherrod to the witnesses, were made subsequently to the levy. The court overruled the motion to exclude this testimony, holding, that it was admissible for the purpose of affecting the credibility of the witness sought to be impeached, in reference to his statement in regard to delivering lumber to Luke, but that any statement made by the witness Sherrod, the defendant in fi. fa., after the levy, would be inadmissible.
It is insisted, in the brief of the learned counsel for the defendant in error, that the claimant admitted a prima facie case by admitting the property to be in the possession of the defendant at the time of the levy. This may be true as a matter of fact, but it does not appear in the record that the claimant made any admission. The original bill of exceptions simply purports to give such testimony as the plaintiff in error deemed material to a clear understanding of the errors complained of. Under the rule this is all that is required, and this court can not presume that there was other evidence or that there 'was not other evidence. There is no
On the trial now under review, we think that the evidence, the testimony of Luke not being contradicted, demanded a finding in favor of the claimant; and consequently the judgment finding the property subject was erroneous. Judgment reversed.