Preetorius v. Tootle

Beck, Presiding Justice. To the levy of an execution dated September, 1923, on a one-fifth undivided interest in 531 acres of land in Tattnall County as the property of E. 1L Tootle, his wife, Mrs. E. H. Tootle, filed a claim. After conclusion of the evidence for both sides, and the charge of the court, the jury returned a verdict finding the property not subject. The plaintiff’s motion for new trial was overruled, and he excepted. The rulings stated in headnotes 1, 2, and 3 require no elaboration. The remaining ground of the motion for a new trial excepts to a ruling in allowing the introduction of evidence to show that the ñ. fa. as against which the claim was interposed had been paid. This was not error. It was competent for the claimant to show that the fi. fa. levied upon the land which she claims had been paid in full.' In Ansley Co. v. O’Byrne, 120 Ga. 618 (48 S. E. 228), it was said: “The claimant may have a legal title, but he may have [560] acquired it from a defendant against whom the judgment had been previously rendered. When, therefore, a levy is made, the question is, not to whom does the land belong, but is it subject to the execution ? This being the issue, the claimant is interested in being able to attack the validity of the ñ. fa., to the end that he may have the levy dismissed; and for this purpose he is permitted to show that the judgment is void, or, if ever valid, that it has been discharged. In fact, he can make any attack upon the process levied which the defendant therein may then make.” See also Bland Lumber Co. v. Perkins, 46 Ga. App. 401 (167 S. E. 707). Judgment affirmed. All the Justices concur.