Copeland v. Lucas

Bussell, J. The decision in this case is controlled by the rulings of the Supreme Court in Marchman v. Todd, 15 Ga. 25, and Manning v. Mitcherson, 69 Ga. 447 (47 Am. R. 764). The only point raised by the plaintiff in error is, that possessory warrant is not the proper remedy under the facts of the instant case, .and that for that reason the judge of the superior court erred in overruling the certiorari. The insistence of counsel for the plaintiff in error is that inasmuch as there was no “fraud, violence, seduction, or other like means” used by the plaintiff in error to get possession of the goods, the defendant in error should have instituted bail-trover. The decision of this court in Dennard v. Butler, 2 Ga. App. 198 (58 S. E. 297), is relied upon as authority. The ruling in that case, following several decisions of the Supreme Court, is that possessory warrant is not available as a remedy to recover personal property, where the defendant has obtained possession by the consent of the plaintiff. That decision is not in point, in a case where, according to the undisputed evidence, the possession of the property was acquired without the consent of the owner or former possessor. In that decision the rulings in Trotti v. Wyly, 77 Ga. 684, that, “unless it clearly appears that the defendant acquired possession in one of the modes inhibited by the [statute], there is nothing for the proceeding to rest on,” and that “under a possessory warrant there is no question as to the title or as to the right of possession, but the sole question is as to the manner in which the possession has been obtained by the do 8 fendant,” are quoted; and the case of Brown v. Todd, 124 Ga. 939 (53 S. E. 678), is also cited, but there is nothing therein which is in conflict with the earlier rulings in the Marchman and Manning eases, supra. Possessory warrants are available under §4799 of the Civil Code, it is true, wherever “any personal chattel has been taken, enticed, or carried away, either by fraud, violence, seduction, or other like means, from the possession of the party complaining;” and most of the reported eases have dealt with this portion of the act of 1821. But while, under a possessory warrant, title or right of possession is not at issue, the terms of the original adft of 1821, now embodied in that section of the code, are equally applicable to instances where a “personal chattel, having recently been in the quiet, peaceable, and legally-acquired possession of such complaining party, has disappeared without his consent, and as he believes has been received or taken possession of by the party complained against, under some pretended claim, and without lawful warrant or authority.” In the Manning case, supra, it was held that possessory warrant was the proper remedy for the recovery of the woman’s tame canary bird, which, having disappeared without the knowledge or consent of the owner, was received and taken possession of by a man who refused to surrender it because he thought he had been discourteously treated. There was no evidence on the line of the insistence of the plaintiff in error in this case, — -no evidence that Mr. Manning obtained the canary bird by fraud, violence, or seduction, or in other like manner; but the court held that “a possessory warrant will lie against any one who receives or takes possession of a personal chattel under a pretended claim and without lawful warrant or authority.” In the Marchman case, supra, Judge Lumpkin, discussing the preamble to the act of 1821, as well as the act itself, shows that the law is not confined to cases where possession has been obtained by fraud, violence, or seduction; and he so analyses the statute as a whole as to show that it has a scope broad enough to include all eases where the change of the possession of a personal chattel is effected without the consent of the plaintiff and without authority of law. He sums up the ruling of the court as follows: “It will be perceived, moreover, that the law applies to every possession which has been •acquired without-the consent of the opposite party or without au 9 tbority of law.” Tbe only case cited by counsel for tbe plaintiff in error, which by any construction would appear to be in conflict with the older and controlling authority from which we have just quoted, is that of Owens v. Outlaw, 105 Ga. 477 (30 S. E. 427); and careful reading of the Owens case shows it to be in accordance with the general principle that where the possession of the party complained against is obtained without the consent of the complaining party, and without warrant or authority of law, possessory warrant may be resorted to as a remedy. In the Owens case the defendant was in possession by virtue of a contract with the plaintiff. His original possession rested upon the plaintiff’s consent, and the only question at issue was whether the defendant had the right, under the terms of the contract, to retain possession for a longer time. The evidence in the present case was sufficient to authorize the conclusion on the part of the lower court that the plaintiff had never voluntarily parted with possession of her goods, and that they were obtained by the defendant to secure an indebtedness of the plaintiff’s husband or father, without her consent and without authority of law. There was no error in dismissing the certiorari. Judgment affirmed.