Rowland v. Gregg & Son, 122 Ga. 819

Rowland v. Gregg & Son

122 Ga. 819 | Ga. | 1905

Lumpkin, J.

(After stating the facts.) A claim is a statutory

proceeding which is authorized to be interposed where a levy has been made on property; but the statute contemplates that this •shall be done by some person who claims the property and “ shall make oath” thereto. Civil Code, § 4611. On the trial of a claim, after the plaintiff has made out a prima facie case, in order to successfully overcome it the claimants must show title in themselves, or such an interest as would be superior to the right of the plaintiff in fi. fa. to proceed with the execution or attachment. They can not sustain a .claim in favor of themselves by showing title in a third person. Robinson v. Schly, 6 Ga. 516, 529; Moody v. Travis, 76 Ga. 833; Beers v. Dawson, 8 Ga. 556; Stirks v. Johnson, 99 Ga. 298; Thompson v. Waterman, 100 Ga. 586; Parker v. Mathews, 106 Ga. 49; Burt v. Rubley, 113 Ga. 1144. Accord*822ing to the evidence of the claimants, there was an equitable assignment to the Indiana bank. Haas v. Old National Bank, 91 Ga. 307. The claim, however, was not interposed by the bank, but by Gregg & Son. What title or interest had they in the property, or what right to file a claim to it ? The mere direction by an owner of property to another, that the latter should file a claim in his own name, would not make such proceeding lawful. If a person has a legal right, it does not follow that he may delegate to another the power to litigate in the name of such other in respect to it. Generally an agent has no authority to enforce in his own name the rights of his principal. To this rule there are certain exceptions. But for an agent to be merely instructed by his principal to institute litigation in his own name is not one of them. Civil Code, § 3037. It is urged that the claimants were factors, and as such were entitled to file this claim. There is nothing in the evidence that shows that they were factors, rather than mere agents. Nor does it appear that they had made any advances, or acquired any lien. The property was in the physical possession of the railroad-company at Athens. They declined to advance any money, and the bill of lading was taken up with the money of the bank. The testimony was that they sent a check to Athens on June 15, and received a bill of lading by return mail. The levy was made on June 16. So that it is uncertain whether they had received the bill of lading prior to the levy. But whether they had or not, they had no interest in the property which would sustain a claim interposed in their own names. In cases where factors or others than the owner of property have been allowed to interpose a claim to a levy, it has been because such claimants had title or a lien or interest of some character which they were authorized to protect.

The claimants relied upon the case of Wade v. Hamilton, 30 Ga. 450. The second headnote of that case is as follows: “The interest which will support a claim under our statute is any interest which renders the property not subject to the levying fi. fa. or attachment, or which is inconsistent with the plaintiffs right to proceed in selling the property.” In that case it appeared that the owner of cotton obtained an advance from a firm and delivered the cotton to a common carrier consigned to them. It was held that this gave to the factors such an interest as would *823support a claim when the cotton was levied on under a fi. fa. against the consignor. Stephens, J.', who delivered the opinion, said: “ Their lien gave them such an interest as entitled them to payment of their debt in preference to the plaintiffs in attachment, and we think that was interest enough to support a claim under the statute. The very question to be tried in a claim case is, whether or not the claimant has such an interest in the property as renders it not subject to the attachment or fi. fa.” In each of the cases where a claim has been sustained there was some interest on which to base it. In the present case, at the time of the interposition of the claim no interest in the claimants appears to have existed. See Elliott v. Cox, 48 Ga. 39; Hardeman v. De Vaughn, 49 Ga. 599; Burrus v. Kyle, 56 Ga. 24; Hurley v. Epps, 69 Ga. 611; Durdin v. Hill, 75 Ga. 228; Willingham v. Rushing, 105 Ga. 72, 74. That one who claims property may interpose such a claim by himself or his agent or attorney (Civil Code, § 4611) does not mean that the agent or attorney may interpose the claim in his own name. Section 3038 of the Civil Code, touching the right of an agent to protect his possession, has no relevancy to the facts of the present case. The construction which should be placed upon it has been discussed in Mitchell v. Georgia & Alabama Ry., 111 Ga. 760. The case of Groover v. Warfield, 50 Ga. 664, holds that “Cotton factors can, in their own names, recover all the damages resulting from a breach of contract by the buyer of cotton from them, although they may be bound to pay the samé, when- recovered, to their consignors.” This does not affect the question of the right to interpose a claim, under the facts disclosed by the evidence here.

Judgment reversed.

All the Justices concur, except Gandler, J., absent.