Claton v. Ganey

Bleckley, Justice. 1. The adverse adjudication upon the search warrant did not conclude the plaintiff in the possessory warrant subsequently sued out. Such warrant is a criminal proceeding, and serves to alter possession only where a crime has been committed. Code, §§4759,4760, 4761. On the other hand, possessory warrant is 'a civil proceeding, and under it the property is “ to be delivered to the person from whom the same was violently or fraudulently taken or enticed away, or from whom the same absconded, or in whose peaceable and lawful possession it last was.” Id., §4035. With this difference of nature and scope in the two warrants, it is manifest that the facts developed on the trial of the former might be such as to uphold the latter, and yet wholly inufficienttmii the former. The criminal proceeding [333] might fail solely because the requisite criminal element was found absent. Nothing is plainer than that a judgment to the effect that a plus i is not proved, is no adjudication that a is not pi’oved. 2. The affidavit on which the possessory warrant issued ■alleged the defendant was of Mitchell county, and that the property had been received or taken possession of by him. It is true that the complaint on oath to obtain a warrant is ■to be made “to any judge of the superior, judge of the county court, or justice of the peace of the county in which the property in controversy may be,” (Code, §4032,) and it does not follow with absolute certainty that the property is in the county because the person who has taken or received ■it is of the county; yet, there is a fair presumption, until the contrary appears, that such is the fact. There is some difficulty in grounding jurisdiction to issue the warrant upon a mere presumption which may or may not be true, and certainly in so summary and special a proceeding as that by possessory warrant the jurisdiction ought to appear upon the face of the papers. It is, however, to be considered that in many cases, perhaps in most of them, the complaining party may be unable to find the property, and can only know where it is by inferring its whereabouts from that of the wrongful possessor. Evidently, the remedy of possessory -warrant is intended as much for cases where property is hidden or concealed, as where it is held openly ; for if the officer cannot find it so as to seize it under the warrant, the defendant is to be imprisoned until he produces it, if to produce it is in his power. Code, §4038. In deciding what averments will suffice to ground jurisdiction, regard must be had to the general scope and scheme of the statute, •and to what, in the nature of things, is practicable or impracticable in applying it to the actual cases which it was intended to reach. It is a general rule of law that personalty is to be considered as here or yonder, not as may happen to be its actual location for the time being, but as the owner may be or reside here or there. The property follows and attends him as he changes place. This ruléis not [334] of itself, sufficient to dispose of the question iu hand, but it furnishes an analogy which seems useful. To allege that a person is of such or such a county, is, in some sort, to allege that his personal property mentioned in the same instrument is of that county. So, to allege that a person has received or taken possession of certain personalty, and that he is of the county named, is an indirect allegation that the-property is there also. It may be that this view mixes somewhat constructive location with actual location, and does not come down to an exact fit with the meaning of the statute; for it must be confessed that the statute contemplates that the complaint shall be lodged in the county where the property actually is. The only escape which I see, after all, is to revert to the presumption first announced, and to rest the juiisdiction on it; justifying the acceptance of a presumption as the basis for jurisdiction, by the impracticability of requiring more to be directly sworn to than has been sworn to in this case, the object and purpose of the statute being considered. At all events, the holding of this court is, that the affidavit is sufficiently specific as to the property being in Mitchell county, the county in which the warrant was applied for and issued, and I have given the best reason I can for so deciding. 3. It may be that the court below was right in sustaining the certiorari, (on the facts in evidence,) granting the law on the two special points to be as we have above ruled it. But we will let the ruling be reconsidered, for the court did not stop with sustaining the certiorari but disposed finally of the case instead of remanding it for a new trial. As the dispute turns wholly upon matters of fact, aud there is no estoppel or conclusive bar on either side, and the evidence is conflicting, the judgment of the primary court cannot be properly set aside without an order to try the case over. 60 Ga., 100. If with such an order the certiorari had been sustained we should not have interfered, and we leave the court below free to sustain the certiora/ri or not, in his discretion. Judgment reversed.