Houser v. Brown

Warner, Chief Justice. This was a claim case, on the trial of which, it being near night, the parties agreed “ that the court might direct the jury, that after they had made up their verdict, they could write it out and let the foreman sign it, put it in his pocket, and bring it into court at nine o’clock the next morning ; and that after they had made the verdict and written it out, signed and sealed it up and given it to the foreman, they could disperse and be at large until nine o’clock the next morning.” The jury found the property subject to the fi. fa. levied thereon, and in accordance with the above directions, returned into court with the verdict, and before it was delivered, claimant’s counsel made a motion to withdraw the claim, which was allowed by the court, and refused to allow said verdict to be received and entered on the minutes. Whereupon the plaintiff in ft. fa. excepted. As a matter of practice in claim cases, we think the court erred in allowing the claimant to withdraw his claim at the time he did, on the statement of facts disclosed in the record. The difference between a plaintiff’s dismissing his action before publication of the verdict, and a claimant withdrawing his claim, is this, that in the' latter ease the plaihtiff in ft. fa. has the right to proceed against the claimant for damages, notwithstanding the claim may be withdrawn. Code, §3742. If the claimant desires to withdraw his claim in a claim case, he should do so before the jury leave the jury box to make up their verdict. 22 Ga., 565. Let the judgment of the court below be reversed.