Cowart v. T. J. Dunbar & Co.

• Decision Date: 31 January 1876
• Citation: 56 Ga. 418
• Court: Georgia Supreme Court
• Parties: T. W. Cowart, sheriff, plaintiff in error. v. T. J. Dunbar & Company et al., defendants in error.

56 Ga. 418

T. W. Cowart, sheriff, plaintiff in error. v. T. J. Dunbar & Company et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1876.)

Sheriff. Attachment. Damages. Before Judge Herschei, V. Johnson. Emanuel Superior Court. April Term, 1875.

Reported in the decision.

Charles B. Kelly; Josephus Camp, by Z. D. Harrison, for plaintiff in error.

John M. Stubbs; H. D. D. Twiggs, for defendants.

Warner. Chief Justice.

This was a rule against the sheriff of Emanuel county, and the record contains the following statement of facts:

Defendants in error obtained judgments against John L, McLemore at the November term, 1871, of Emanuel superior court on which judgments fi. fas. were issued November 13th, *1871. At the April term, 1874, of said court, a rule was issued against the sheriff because of his failure to levy said fi. fas. The sheriff answered the rule, saving he had made search but could find no property. His answer was traversed, and on the trial of the issue thus formed plaintiffs in fi. fa, introduced in evidence the said fi. fas., with entries of nulls bona thereon. They also introduced the following oral testimony:

John M. Stubbs, attorney for plaintiff in ft. fa., swore that at the April term, 1873, deputy sheriff Cannady told him that defendant in ft. fa. was in possession of a horse and buggy, but that he did not know who owned it. Witness told him to lew on them, to which Cannady replied he would if he (witness) would point out the property. Witness at same time also instructed Cannady to ascertain if defendant in ft. fa. bad any interest in a certain store-house and lot in the town of Swainsboro, and that if he found such interest, to levy on the same that at the April term, 1874, witness asked Cannady if he had made the money on these ft. fas.; that Cannady run out his tongue with an expression of surprise and said he had forgotten it witness then told him he would have to rule him, to which Cannady replied: "Well, go ahead; you have not paid me the cost in these cases anyhow."

S. A. Pughsley swore that he saw defendant in ft. fa.... possession of property in 1869, 1870 and 1871; he was in possession of. and exercised acts of ownership over, a horse and buggy in 1872 and the early part of 1873; his possession of horse and buggy and claim of ownership was open and notorious; horse and buggy were worth $325 00 or $35000; after 1871 defendant in ft. fa. was in possession of store-house and lot in Swainsboro; the house was built by Sherod in 1872; defendant's possession thereof was in 1872 and part of 1873; witness, at the time this rule was brought, and still is, in employment of plaintiff in ft. fa.

John H. ShErod swore that he built the house on the Moore lot. and finished the same in June. 1872, and then delivered *possession thereof to defendant in ft. fa., who retained possession of it about one year; store-house and lot worth $1,000 00; the dwelling house now occupied by defendant in ft. fa. is worth $1.500 00. and has been in his possession since its completion last year: saw defendant in ft. fa. in possession of horse and buggy in 1872 and part of 1873; said horse and buggy were worth $350 00; the possession of all this property was open and public; the sheriff's office, in the town of Swainsboro, is within one hundred yards of said store-house.

H. M. Sutton swore that he built the dwelling house occupied by defendant in ft. fa.: it is worth $2.500 00; completed it in 1874; defendant in ft. fa. was in possession when the house was commenced, and has since then retained possession the storehouse is worth $450 00; store-house and lot worth $1.000 00 or $1,200 00.

Respondent introduced the following testimony:

William Cannady. deputy sheriff, swore as follows: Had no recollection of conversations testified to by Colonel Stubbs: don't remember to have told him that I had forgotten to levyfi. fas.; don\'t remember that he said he would rule me, and that I replied, "Go ahead; you hadn\'t paid me the cost on these cases anyhow." I have not seen defendant in fi. fa. in possession of any property since I have been in possession of these fi. fas. I and Cowart, the sheriff, went into office in February or March, 1873.

Cross-examined.—Am quite positive I never had any such conversation with Colonel Stubbs, as stated by him. Don't recollect that I swore on the last trial of this case that I would not swear these conversations had not taken place. [Here counsel for plaintiffs in fi. fa. read from witness's recorded testimony on the former trial, which was an approved brief, agreed upon by counsel on former motion for new trial, as follows: Witness would not say that he did not tell Stubbs that he had forgotten to levy and that Stubbs had not paid costs of said suit.l Counsel asked if this was not his testimony on former trial. Witness replied, "If it is so recorded. *I must have so testified, but I do not remember it." Had seen defendant in fi. fa., and his brother Lawson McLemore. selling goods in two or three stores about town, but don't know which was in possession of the houses.

Matthew Overstreet, sworn: Went into possession of storehouse referred to in January, 1873; Lawson McLemore was in possession when I went into it: defendant in fi. fa. is my son-in-law, and was not in possession of house at that time.

CheslEy Faircloth. sworn: I went into possession of storehouse in fall of 1872; Lawson McLemore put me in possession; he was in possession before I went in.

Defendant in fi. fa., sworn: Was never in possession of storehouse; kept post-office in portion of store-house. Since I have been post-master I have kept post-office in several stores belonging to others; others kept post-office for me.

Defendant offered to prove by the witness, H. W. Sutton, called by plaintiffs, that the house occupied by John L. McLemore, defendant in fi. fa., as a dwelling house, was built by witness for Ira T. McLemore. father of defendant in fi. fa., and that the defendant in fi. fa. was in possession merely as a tenant of his father, Ira T. McLemore. who was then, and has been ever since, the owner of the premises.

To this evidence the plaintiffs objected, the court sustained the objection, and refused to allow the evidence to go before the jury. To which ruling and decision of the court the defendant excepted.

Defendant offered to prove by the witness, John L. McLemore, that he, the defendant in fi. fas., was not the owner of the horse and buggy testified to by plaintiffs' witnesses, and that he never exercised acts of ownership over said property, nor had the same in possession, except when he had borrowed them for a short time, and that L. A. McLemore, his brother, was the owner of said property and in possession of the same. To this evidence the plaintiffs objected, and the court sustained the objection, and refused to allow the evidence to go before the jury. To which ruling and decision of the court, in rejecting saidevidence, defendant excepted.

*Defendant then offered to rebut the evidence of John Sherod, introduced by the plaintiffs, as to the building. possession and ownership of the store-house, by the witness. John L. McLemore, by whom defendant offered to prove that the witness, who is the defendant in fi. fa., did not contract for the building of said house, and that he was never in possession of the same, but that witness' brother, L. A. McLemore, had the house built, and is the owner of the same, and had been in possession of the house ever since its construction.

To this evidence the plaintiffs objected, and the court sustained the objection, and refused to allow the evidence to go before the jury. To which ruling and decision of the court, in rejecting said evidence, the defendants excepted.

The defendant having offered no other evidence, the case was submitted to the jury. The judge charged the jury as follows:

"Gentlemen of the jury—Two fi. fas., the one in favor of J. L. Falk & Company, and the other in favor of T. J. Dunbar & Company, v. John L. McLemore, were placed in the hands of the sheriff for collection early in the year 1873. Having filled to make the money thereon, a rule nisi was issued against him at the April term, 1874, to show cause why, etc. In response to that rule the sheriff answered that he had searched and could find no property whereon to levy said fi. fas. The plaintiffs in fi. fa. traversed said answer, and alleged that when called on by plaintiffs' counsel and asked why he had not collected the fi. fas., the sheriff answered "that he had forgotten it, " and added, "you have not paid the cost on these fi. fas., anyhow." The issue thus made up forms the subject matter of your present deliberation.

"The sheriff having answered the rule officially, under oath, and in response to plaintiffs' call, the presumption of law is that his answer is true, and that presumption is conclusive unless traversed and rebutted by proof. Hence the traverse in this case. On the one hand, the sheriff says he searched and could find no property to levy said fi. fas. On the other hand, theplaintiffs say his answer is not true, but so far from *making any "search" for property he confessed to the plaintiffs\' counsel that he "forgot it, " and urged as an additional excuse that the plaintiffs counsel had not "paid the cost on said fi. fas., anyhow." Now, gentlemen, if the sheriff\'s answer to this rule nisi be true, then he has done his duty—the rule...