E. Tris Napier Co. v. Dennard

Geobge, J. A liveryman’s lien was foreclosed in the city court of Macon and a levy was made upon certain personalty as the property of the defendant. A third person filed a claim to the property, and, by agree- , ment between the plaintiff and the claimant, the property was sold, without prejudice to the rights of either party. At the trial the lien foreclosure was dismissed upon a technical ground urged by the claimant, and the judge entered an order dismissing the levy and taxing the costs against the plaintiff, and awarding to the claimant the proceeds of the sale. The plaintiff obtained a writ of certiorari, and on the hearing the judge of the superior court reversed the judgment of the lower court. Held: The dismissal of the levy was proper, it appearing, from the answer of the judge of the municipal court (which was not traversed), that the plaintiff acquiesced in and consented to the dismissal; but it was properly held that so much of the judgment of the municipal court as awarded the fund to the claimant was error, it appearing that no evidence whatever was introduced by the plaintiff, the defendant, or the claimant, and that the levy was dismissed upon a purely technical ground. Under such circumstances the municipal court had not the authority to award the proceeds of the personalty levied upon to the claimant. Stewart v. Mundy, 131 Ga. 586 (4) (62 S. E. 986). Judgment affirmed. Wade, O. J., and Luke, J., concur.