34 Ga. App. 719 | Ga. Ct. App. | 1925
1. The effect of the amendment to the magistrate’s answer to the petition for certiorari was to set forth that the magistrate who tried the case held that the burden of proof was upon the claimant. The superior court, in overruling the second exception taken to the magistrate’s answer, in effect held such to he the case.
2. In the trial of a claim case, where it was in no wise made to appear in whose poss'ession the property levied upon was found, the burden of proof was upon the plaintiff in fi. fa. Civil Code (1910), § 5170; Knowles v. Jourdan, 66 Ga. 300 (1); Thompson v. American &c. Co., 107 Ga. 832 (1) (33 S. E. 689); Howell v. Simpson Grocery Co., 121 Ga. 461 (3) (49 S. E. 299) ; Green v. Wade-Chambers Gro. Co., 19 Ga. App. 454, 455 (2) (91 S. E. 789).
3. In a case where the entry of levy did not disclose in whose possession the property was found at the time of the levy, and no admission or other proof was made with reference to this question, and both the plaintiff in fi. fa. and the claimant contended that the burden was upon the opposite party, an adjudication by the court that the burden was upon the claimant was erroneous.
4. The fact that after such an adjudication counsel for the claimant said, “All right, we will go ahead,” did not amount to an assumption, by agreement, of the burden of proof, or an acquiescence in such previous adverse and erroneous judgment, since the question had already been determined by an adverse adjudication of the court, and there was nothing left for the claimant to do except to go ahead.
Judgment reversed.
