Corniff v. Cook

• Decision Date: 12 November 1894
• Citation: 22 S.E. 47,95 Ga. 61
• Parties: CORNIFF. v. COOK.
• Court: Georgia Supreme Court

22 S.E. 47

95 Ga. 61

CORNIFF.

v.COOK.

Supreme Court of Georgia.

Nov. 12, 1894.

Bill of Exceptions?/span>Levy of Attachment?/span>Instructions?/span>Bdrden of Proof.

1. A demurrer to a rule, instituted in the city court of Atlanta, having been overruled, and no exceptions pendente lite having been filed, it was too late to assign as error the judgment overruling the demurrer in a bill of exceptions sued out more than 60 days after the date of such judgment.

2. Where a constable, having in his possession an attachment against a private corporation, went to a house in which personal goods of the corporation were located, for the purpose of levying upon the same, made an inventory of the goods (they being at the time under his view, in his immediate presence, and constructively in hispossession), informed the only servant of the corporation present that he had levied upon the property, and thereupon immediately went to the president of the corporation, who, upon being informed of what had been done, agreed with the officer that if the goods were not removed from the house the same should be held subject to the order and control of the officer, who shortly thereafter made an entry of levy upon the attachment, the levy was legally sufficient, although the constable did not take actual manual custody of the goods, or lock up the house, or remove the goods therefrom.

3. The requests to charge relating to what would be necessary to constitute a valid levy were not applicable to the facts disclosed by the evidence, and there was no error in refusing the same, and the charges given upon this subject were pertinent and correct.

4. The law with reference to the burden of proof and the preponderance of evidence was correctly stated by the presiding judge, and there was no error in refusing to charge that "the question whether the burden of proof has been carried is to be settled by looking at the number of witnesses testifying in favor or against certain facts, their demeanor on the stand, character, interest, " etc.

5. The evidence warranted the verdict, and there was no error in denying a new trial.

(Syllabus by the Court.)

Error from city court of Atlanta; Howard Van Epps, Judge.

Action by William Cornift against J. A. J. Cook. Defendant had judgment, and plaintiff brings error. Affirmed.

Mayson & Hill, for plaintiff in error.

Goodwin & Westmoreland, for defendant in error.

LUMPKIN, J. 1. Upon the rule of practice announced in the first headnote we will attempt no comment. The question involved is too well settled to require further notice at our hands.

2. The evidence as to what was done by the constable, Cook, when he went to levy the attachment sued out by Chamberlain, Johnson & Co. upon the property of the Southern Travelers' Club is somewhat complicated and confused; but, after giving it a very thorough examination and study, we think a fair summary of its real purport and meaning is stated in the second headnote. Counsel for the plaintiff in error strenuously insisted that the porter of the club, in charge of its property at the time Cook went to make the levy, could not, under the circumstances, become the agent of Cook to retain possession of the property; and further, that, inasmuch as the constable did not take absolute manual possession and control of the goods, there should have been a joint promise by the porter and the president of the club to hold the property for the constable, in order to make the levy valid. Both of these contentions are, in our opinion, successfully answered by the fact that, after the constable left the clubhouse, the president of the corporation agreed with the constable that if he would allow the property to remain where it then was it should be held subject to the officer's order. The president was the alter ego of the corporation and, this being so, it is entirely immaterial whether the porter did or did not join with him in promising to hold for the constable; and it is also of no consequence whether the porter, regarded as an agent of the corporation, could or could not become also the agent of the constable to keep the property for him. The evidence of Wellhouse, the president of the club, as to what occurred between himself and Cook, at first glance, seems to conflict with the evidence of the latter; but upon a careful examination it will appear that at best the statements of Wellhouse are (if not evasive) merely negative, and that he really does not deny the account of the transaction given by Cook. The question, therefore, is, taking Cook's version as correct, whether or not what he did in the premises amounted to a legal and valid levy. We think it did, and this position is well sustained by the most respectable authority. The evidence, as we understand it, shows that the constable, armed with the attachment, went to the clubhouse for the purpose of levying upon the goods of the corporation; that they were in his view, in his immediate presence, under his control, and, constructively, in his possession. He made an inventory of them, and then went to the president of the corporation, who agreed to hold the goods subject to the order and control of the officer. It was really at the instance of Wellhouse that this arrangement was entered into, he fearing the goods would be damaged if the officer insisted upon removing the same from the premises. Taking all the facts together, it amounted simply to this: that the officer left...