Curry v. The Mayor

• Decision Date: 30 September 1879
• Citation: 64 Ga. 290
• Parties: Curry. v. The Mayor and Aldermen of Savannah.
• Court: Georgia Supreme Court

64 Ga. 290

Curry. v. The Mayor and Aldermen of Savannah.

Supreme Court of the State of Georgia

(September Term, 1879.)

Municipal coporations. Levy and sale. Before Judge Thompkins. Chatham Superior Court. October Term, 1878.

Several justice court fi. fas. in favor of Curry against the Mayor, etc., of Savannah, were levied on a house and lot. Defendant filed an affidavit of illegality to each fi. fa., one ground of illegality being that defendant is a muncipal corporation "and owns the said property levied on in that capacity and in the performance of its functions in the administration of the powers of government delegated to it; and so the deponent says that the said land is not subject to levy and sale under execution." On the hearing before the magistrate, he rendered judgment for the plaintiff, and defendant appealed. In the superior court plaintiff filed a traverse to the affidavits, but it was dismissed as coming too late. All the cases were heard together. By *consent the affidavit of illegality was amended by adding that the property levied on "hadbeen used for a place for keeping a fire-engine and apparatus under the ordinances of said city, and were at the date of the levy held, and likely to be used, for such municipal purposes again, but were not in such actual use nor used in any manner at the moment of levy."

Plaintiff demurred to the amended affidavit; the demurrer was overruled, and the levies dismissed. Plaintiff excepted.

W. W. Montgomery, by brief, for plaintiff in error, cited "Reporter, " vol. VII, p. 500; Dillon on Mun. Corps., secs. 446, 615 a, and note. 686; 33 La. Am., 61; 17 Wallace, 332-3-4; Code, secs. 4856, 4857.

W. D. Harden, for defendant, cited, Code, secs. 1672, 4856-7; Dillon on Mun. Corps., secs. 446, 100, 39, 64, 65 and note, 715; "Reporter, " vol. VII, p. 500; 3+ N. J., 131, 133.

JACKSON, Justice.

The sole question is, whether a certain lot and tenement formerly in use for a fire-engine by the city authorities and still held by them for future use in like manner and purpose, is liable to be levied upon and sold by the sheriff under a fi. fa. issued upon a common law judgment?

We think that all property held by the city authorities for the public use, health or enjoyment of the people of the city, is not so liable to levy and sale. Further, we are of the opinion that all property of every kind held by the municipality is presumptively for the public use, and whilst perhaps the presumption may be overcome on proof that...