Wilburn v. Beasley

Bell, J. A possessory warrant is not the proper means for the recovery of personal property, unless the .property was taken from the possession of the complaining party “by fraud, violence, seduction or other means,” or unless it, having disappeared without his consent, has been received or taken possession of, without lawful warrant or authority, by the per [108] son against whom the warrant issues. In order to maintain the proceeding it must be shown that the property was taken without the complaining party’s consent. Lotz v. Walker, 13 Ga. App. 329 (1) (2) (79 S. E. 169); Pearson v. Abell, 16 Ga. App. 634 (1) (85 S. E. 935); Owens v. Outlaw, 105 Ga. 477 (30 S. E. 427); Brown v. Todd, 124 Ga. 939 (1) (53 S. E. 678); Dennard v. Butler, 2 Ga. App. 198 (2) (58 S. E. 297); Copeland v. Lucas, 6 Ga. App. 6 (64 S. E. 113); Henderson v. De Medicis, 10 Ga. App. 190 (73 S. E. 27). In this case the plaintiff’s testimony showed that the defendant came into possession of the hog in question, together with her increase, under an agreement between them that the defendant was to “keep the sow and raise .on halves,”. and that by virtue of this contract the defendant had possession of the sow and her pigs at the time the possessory-warrant proceeding was instituted. Upon this testimony the magistrate before whom the case was tried, on timely motion made therefor, should have dismissed the warrant, and it was error instead to render judgment in favor of the plaintiff. It follows that the judge of the superior court erred in overruling the certiorari. Decided October 12, 1923. Fred Eea, for plaintiff in error. W. A. Dumpier, contra. As pointed out in Brown v. Todd, supra, this ease is distinguishable from Meredith v. Knott, 34 Ga. 222; Hillyer v. Brogden, 67 Ga. 24; Wynn v. Harrison, 111 Ga. 816 (36 S. E. 643); Sheriff v. Thompson, 116 Ga. 436 (42 S. E. 738), and cases following these authorities, in that “in those cases there was an agency, and possession by the agent was construed to be possession by the principal. Wrongful taking from the agent’s possession, or refusal on his part to deliver possession to his principal on demand, was held to be a tortious deprivation of the principal’s possession.” Judgment reversed. Jenkins, P. J., and Stephens, J., concur.