Parker & Co. v. Mathews
Parker & Co. v. Mathews
Opinion of the Court
An execution from a judgment rendered July 2, 1887, by the justice’s court of the 743d district G. M. of Taylor county, in favor of M. G. Parker & Co. against F. A. Mathews, “per J. F. Mathews, agent,” for $100 principal, besid’es interest and costs, was, on September 27, 1894, levied on certain land in Talbot county as the property of the defendant, and a claim was interposed by J. F. Mathews individually and as agent of Beulah A. Pickard and Sarah T. McMichael. On the trial of the case there was a verdict finding the property not subject. The plaintiffs moved for a new trial, on the ground that the verdict was contrary to the law and evidence. The motion was overruled, and they excepted.. The entry of levy by the officer shows that possession was in the defendant in fi. fa. at the time -of the levy. Plaintiffs in fi. fa., in addition to this, introduced a deed to the defendant, F. A. Mathews, conveying the land in dispute, executed on November 20, 1872. There was no testimony whatever that the claimants ever had any legal title to, or interest in, the property. J. F. Mathews, one of the claimants, who was the husband of the defendant in fi. fa., simply testified that he and his family had lived on the land many years. The wife constituted part of the family. There was nothing in this testimony inconsistent with the defendant’s possession in her own right under a deed that had been executed more than twenty years before. There was a conflict in the testimony as to whether or not the fi. fa. had been paid off, and the verdict of the jury was doubtless based upon the idea that claimants had sustained their contention on this issue, and that therefore the property was not subject. It appears from the record that the burden of proof was upon the claimants to establish their title to the premises in dispute, the plaintiffs having certainly made out a prima facie case showing title in the defendant infi. fa. Instead of meeting this issue, the record fails to show that claimants had any interest in the premises; and the question presented for our consideration is, whether mere strangers to the title to property levied upon can, by filing a claim, make an issue with the plaintiffs in fi. fa. that
The cases of Hines v. Kimball, 47 Ga. 587, and Smith v. Lockett, 73 Ga. 104, are entirely different from the one weare now considering. It appears from those cases that there was simply a motion by claimants to dismiss the proceedings issued in favor of the plaintiffs, upon the ground of fatal defects appearing upon the face of the record. These motions were evidently entertained by the court before the merits of the cases were entered upon. The right of a claimant to quash a fi. fa. or dismiss an attachment because void upon its face can no more be questioned than the right of the plaintiff to dismiss a claim for any fatal defect appearing upon the face of the papers. In the case of Beers v. Dawson, 8 Ga. 556, it was decided that a claimant can not set up an outstanding title in a third person to protect himself and defeat the plaintiff in execution. Lump-kin, J., delivering the opinion in that case, says: “The claimant makes oath that the property levied on is his. The object of this proceeding is, to enable him to protect his own property from sale, and not the property of any one else. The plaintiff in fi. fa. comes into court to litigate the title of the claimant, and not that of some third person, between whom and the claimant there is no privity. Is it not absurd for the claimant to make oath, as he is required to do, that the property is his, and then show on the trial that it belonged to another ? AVbat right
Claimants in this case, therefore, have utterly failed to overcome the prima facie case made against them, and the verdict of the jury in their favor was contrary to the evidence.
Judgment reversed.
Reference
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- PARKER & COMPANY v. MATHEWS
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