7 Ga. App. 518 | Ga. Ct. App. | 1910
In this case the court overruled the demurrer to the plaintiff’s petition, and, after the introduction of the evidence, directed a verdict in favor of the defendant. The plaintiff thereupon filed a direct bill of exceptions, and the defendant thereafter presented a cross-bill of exceptions. We will first consider the merits of the cross-bill. The defendant excepts to the ruling upon the demurrer, and contends that the entry of the constable’s levy, as made on the attachment, should have been rejected because the levy was too vague and indefinite to constitute a valid seizure.
I. We think the court properly overruled the demurrer based upon the ground that the description of the property set forth in paragraph 2 of the petition was too general and indefinite to enable the property to be identified. That paragraph of the petition alleged that the defendant had unlawfully converted to his use “the following personal property in his possession, to wit: one case window shades, one case thread, one case corsets, one ease satchels, fifteen trunks of dry-goods, thirty-six cases shoes, eleven cases notions, five cases hats, eight cases cotton domestics, one bale bolting, one bundle glass, one box glass, and twenty-one rolls paper.” In response to the demurrer the plaintiff amended by adding to the second paragraph the following, to wit: “being the same property delivered to the defendant, D. W. James, by the plaintiff, W. T. Pepper, constable, to be stored and held by said defendant for use of the said plaintiff on the 24th day of January, 1904.” We think that with this amendment, the description of the property sought to be recovered in trover was sufficient to identify it, and to enable the jury to frame a verdict, and full enough to authorize the court to render judgment, in case it was found that the defendant should restore the property. No exact rule can be prescribed as a measure of description. Particularity of description must necessarily vary
2. The second exception presented by the cross-bill is that the court erred in admitting in evidence the entry of the constable’s levy, over the objection that the levy was void for indefiniteness. Eor the reasons stated above, we do not think that the levy is void. The Civil Code, §5421, declares: “The officer making a levy shall always enter the same on the process by virtue of which such levy is made, and in such entry shall plainly describe the property levied on, and the amount of the interest of defendant therein.” We think the levy in this case describes the articles levied on sufficiently, and the property levied on is said to be the property of M. Stein. The decisions in Morton v. Gahona, 70 Ga. 569, and Haines
3. We think the court erred in directing a verdict, because the verdict directed was not the only possible result which could have been reached by the jury. It is true that the defendant testified that the property in question was entrusted to him to. await the determination of the question as to whether the mortgage of the Bank of Blakely was a lien superior to the levy of the attachment on which the constable held the goods in question. But the wit
The remaining questions which are presented by the record are sufficiently stated and ruled in the headnotes. The error of the judge in directing the verdict requires a new trial.
Judgment reversed on main billj ajfw'med on cross-bill.