5 Ga. App. 105 | Ga. Ct. App. | 1908
The only question involved in the present writ ■of error is whether a dog, under the laws of Georgia, is such property as to be subject to levy and sale. In the present case Nelson sued out an attachment against Hegge, upon the ground ■of non-residence, to recover-the purchase-price of a dog. This attachment was levied upon “one white and liver and ticked pointer bitch, named Maud,” as the property of the defendant in the attachment. The plaintiff in error, Vaughn, filed a claim setting
We are of the opinion that the ruling of the judge of the superior court was correct, and that dogs are as much the subject of property right as are other domestic animals, and therefore,, as property, may be levied on and sold. The ruling in Jemison v. Southwestern R. Co., 75 Ga. 444 (58 Am. R. 476), has frequently been invoked, as it is by the learned counsel in the present instance, to sustain the contrary view and uphold the contention that dogs are in no sense property. As we view the Jemison case, it is binding as a precedent only in so far as the ruling-upon the exact point involved is concerned, and no further. The exact point decided by the Supreme Court in that case is that the presumption of negligence did not arise against a railroad, company, where a dog was killed by a railroad train, as in cases, of injury to persons or property. But the opinion in the Jemison. ease recognized that even at that time one could have a qualified-property in a dog; for it was expressly ruled that, while a right of action for a negligent killing by a railroad company could not be maintained, the owner could recover in an action vi et armisfor the wanton and malicious killing of his dog. After having-decided the point which was particularly involved in the Jemison case, Judge Hall proceeded to say, arguendo: “Dogs are not property in such a sense as makes them assets belonging to an estate of a deceased person, and are never inventoried and- appraised,,
In Graham v. Smith, 100 Ga. 434 (28 S. E. 225, 40 L. R. A. 503, 62 Am. St. R. 323), the judgment of the superior court, holding that the owner of the dog had such property in it as would enable him to maintain an action in trover for its recovery, was affirmed. We consider the decision in the Graham case, unlike that of the Jemison case, as direct authority upon the question involved in the case at bar. If one can by trover recover a dog
Following the rational trend of modern authority, we hre compelled to hold that in Georgia, a dog, whether he be a remote descendant of the small spaniel who changed the ■ current of modern history by saving'the life of William of Orange, or carries in his veins the blood of the faithful St. Bernard who rescues the lost traveler from the storm-swept crest of the beetling Alps, may be sold to satisfy even the humblest debt of his owner. For full citation of authority upon this subject, see the very copious notes in 40 L. R. A. 503 et seq. Judgment a-ffirmed.