87 Ga. App. 519 | Ga. Ct. App. | 1953
A constable who seizes the property of another under a void process issued by a court without jurisdiction, or makes such seizure without benefit of any process at all, is a trespasser and may be sued for damage resulting to the property from his illegal act. Hamer v. White, 110 Ga. 300 (2) (34 S. E. 1001); Minhinnett v. Jackson, 45 Ga. App. 207 (3) (164 S. E. 96); Code, §105-1703. As stated in Fulton Grocery Co. v. Maddox, 111 Ga. 260, 265 (36 S. E. 647): “Where property of a person against whom no process has ever issued is seized, such seizure, followed by actual damages to the owner of the property, will give a right of action.”
According to the plaintiff’s evidence, Ellis, transferee of a mortgage on the plaintiff’s truck, turned the mortgage over to Bice, Ellis and Bice being residents of Paulding County from which the plaintiff had recently moved, taking the truck with him; Bice had just been appointed to his position, was under the impression that he had to “serve” the mortgage on the plaintiff, then a resident of Carroll County, and, not knowing how to go about it, requested the other defendant, also a resident of Carroll County, to go down with him to advise him
The above-quoted testimony represents the view of the case most favorable to the plaintiff, that being the evidence to be considered by the reviewing court in determining whether the grant of the nonsuit was error. Highsmith v. National Linen Service Corp., 63 Ga. App. 112 (10 S. E. 2d, 237). So construed, it appears that the resident defendant, Cole, although merely as an accommodation to Bice, accompanied the latter to the plaintiff’s house to “serve” a document which was not such an instrument as would give either defendant authority to take the plaintiff’s truck; that he nevertheless told the plaintiff he had an attachment for the truck, which was untrue; that he did not correct this statement when the plaintiff offered to put up bond, but discouraged him by saying that that was only an unnecessary expense, and, by so doing, persuaded the defendant to turn the truck over peaceably, after which he instructed
A motion for nonsuit presents only the question of whether the plaintiff has proved his case substantially as laid, and where, under the most favorable construction, a prima facie case has been made out, the grant of a nonsuit is error. Henry v. Roberts, 140 Ga. 477 (79 S. E. 115); Box v. Atlantic & B. R. Co., 120 Ga. 1050 (48 S. E. 427).
The trial court erred in granting a nonsuit and dismissing the plaintiff’s case.
Judgment reversed.