Allen v. Fulton National Bank

Hall, Judge. The plaintiff (defendant in error in this court) brought a petition against Herbert Epstein for foreclosure of an automobile under a bill of sale to secure debt, and the marshal levied on the property. Eddy Allen (plaintiff in error) filed a claim asserting ownership of the automobile. After hearing, the trial court denied the claim. The claimant made a motion for new trial on the general and special grounds, and assigns error on the judgment of the trial court overruling this motion. Held: 1. The special grounds of the claimant’s motion for new trial complain that the court refused to dismiss the petition for foreclosure on motion made by the claimant, on the grounds (1) that the petition did not show the plaintiff had a right to foreclose; (2) that the plaintiff and the defendant were estopped, because of facts stated in claimant’s motion, to deny claimant’s title to the automobile; and (3) that a trover action, between the defendant in this foreclosure and the claimant, involving the title to the same automobile, was pending on appeal, Epstein v. Allen, 107 Ga. App. 578 (130 SE2d 811) when the foreclosure action was brought. Neither an exception to a ruling on a motion to dismiss nor an exception to a ruling on the pleadings, is a proper ground of a motion for new trial. Bennett v. Patten, 148 Ga. 66, 67 (95 SE 690); Ray v. Wood, 93 Ga. App. 763, 764 (92 SE2d 820); Sharp v. Michael, 100 Ga. App. 212, 215 (110 SE2d 679); Padgett v. Reaves, 86 Ga. App. 137 (70 SE2d 922); Guest v. Baldwin, 104 Ga. App. 809, 811 (123 SE2d 194). The trial court did not err in overruling the special grounds. 2. The evidence on the issue whether the automobile was subject to the levy, though in conflict, supported the verdict denying the claim. Therefore, the trial court did not err in overruling the general grounds of the motion for new trial. Williamson v. Harry L. Winter, Inc., 156 Ga. 779 (120 SE 602); Chaffin v. Community Loan &c. Co., 67 Ga. App. 410 (20 SE2d 435); Lundin v. Kuniansky, 107 Ga. App. 774, 775 (131 SE2d 219). Judgment affirmed. Nichols, P. J., and Russell, J., concur. Kanes, Benator •& Lambros, Nick G. Lambros, for plaintiff in error. Edenfield, Reyman •&, Sizemore, Robert E. Hicks, contra.