134 Ga. 477 | Ga. | 1910
1. In a claim case where the plaintiff in fi. fa. seeks to make out a prima facie case by showing possession in the defendant, it is incumbent on him to show such possession at the time of the rendition of the judgment, or at the time of the making of the levy, or at some time intermediate between the judgment and the levy.
2. In such a case where'the levying officer amended his entry of levy by adding thereto, after the words “defendant in fi. fa.,” the words “being in possession of the property levied upon;” and where the plaintiff in fi. fa. on the trial introduced also the testimony of witnesses which, as it appears in the record, is somewhat ambiguous and renders it uncertain whether the defendant was in possession either at the time of the rendition of the judgment, or at the time of the making of the levy, or between those dates, the presiding judge correctly refused to dismiss the levy, hut erred in directing a verdict in favor of the plaintiff. He should have submitted the case to the jury to determine what was the fact in regard to such possession.
Judgment reversed.