Hayes v. Consolidated Loan Co.
Hayes v. Consolidated Loan Co.
Opinion of the Court
1. “The interposition of a claim commits the claimant to the fact of the making of a levy, but not to the legality of the process under which it is made,” and a claimant may move to dismiss a levy where it is for any reason fatally defective. Pearce & Renfroe v. Renfroe Bros., 68 Ga. 194 (5a). However, an uninterested person can not interpose objection to the levy of an execution (Parker v. Matthews, 106 Ga. 49, 52, 31 S. E. 784; Wheeler v. Martin, 145 Ga. 164, 88 S. E. 951). Since the claimant is not interested in the case between the plaintiff and the defendant in fi. fa., but is only interested in seeing that his property is not seized under an execution issued against another, his proper remedy in such case is not to move to dismiss the entire proceedings, or to quash the fi. fa., but he should move to dismiss the levy so that his property may be restored to him. Davidson v. Rogers, 80 Ga. 287 (7 S. E. 264); Morrison & McRae v. Anderson, 111 Ga. 847 (36 S. E. 462). In support of his claim and motion to dismiss the levy, he may on the trial of the claim case urge any ground which might then be urged by the defendant in fi. fa., such as that the proceedings are fatally defective (Rossiter MacGovern & Co. v. Carrollton Electric Light Co., 5 Ga. App. 393, 63 S. E. 233), or that the judgment is void or has been discharged (Ansley v. O’Byrne, 120 Ga. 618,
2. However, under the act of 1957 (Ga. L. 1957, p. 224) this court should review all rulings or orders excepted to which may affect the proceedings in the trial court. The point urged by the plaintiff in error in each of her exceptions is that the levy is void because it shows on its face that the property levied on is not the property described in the bill of sale to secure debt or the foreclosure proceedings thereunder, and since this question will without doubt arise again on the trial of the case, its discussion is not out of place here. If faulty, the levy may be amended at the trial of the claim case. Hollis v. Rodgers, Worsham & Co., 106 Ga. 13 (31 S. E. 783). The levy should follow the execution, and the execution should follow the foreclosure proceedings, but even where the mortgage, the execution, and the levy improperly describe the property mortgaged, in an action between the parties to the mortgage the identity of the property, not its description, is in issue, and where a plaintiff in fi. fa. car
The trial court did not err in denying the motion to dismiss the levy.
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.