Investors Finance Co. v. Hill

• Decision Date: 21 May 1942
• Docket Number: 13981.
• Parties: INVESTORS FINANCE CO. v. HILL et al.
• Court: Georgia Supreme Court

21 S.E.2d 220

194 Ga. 236

INVESTORS FINANCE CO. v. HILL et al.

No. 13981.

Supreme Court of Georgia

May 21, 1942

Adhered to After a Rehearing July 15, 1942.

H F. Lawson and R. H. Lawson, both of Hawkinsville, for plaintiff in error.

H McWhorter and L. A. Whipple, both of Cochran, for defendants in error.

Investors Finance Company, plaintiff in error, was the plaintiff in an ejectment suit, filed against the tenant in possession of a lot of land. The company claimed under a sheriff's deed, which was based on a sale after levy of an execution, following the original levy of an attachment on the lot and a special judgment in rem against the lot besides a general judgment against the defendant in attachment. The defendant in that proceeding filed his intervention in this ejectment suit, in which he claimed ownership of the lot, and attacked the sheriff's sale and deed as void for excessive levy. By agreement the case was heard by the judge without a jury. At the trial the plaintiff company offered amendments in which it asked to be subrogated to the rights of the plaintiff in fi. fa., in the event that the sheriff's deed should be found void. The plaintiff in fi. fa also offered an intervention, in which he joined the plaintiff purchaser in the present case as to its amendments and prayers, and asked protection of his own rights. On objections by the defendant, the court disallowed the amendments offered by the plaintiff, and the intervention of the plaintiff in fi. fa., and found in favor of the defendant.

The defendant (defendant in fi. fa.) admitted a prima facie case in the plaintiff, and assumed the burden of proof. There was undisputed testimony by the defendant that the land lot levied on was capable of division into quarters, any one of which would have realized the amount of the execution. The defendant introduced in evidence the writ of attachment, showing an original levy on the entire lot; and the record in the attachment case, including the declaration, which prayed for a special judgment against the lot, as well as a general judgment; and including the verdict and judgment. The defendant also introduced the demurrers and answer which he had filed to the declaration in the attachment proceeding. The verdict for the plaintiff included a finding not only against the defendant generally but 'against the premises * * * levied upon and seized under the attachment, * * * and that [the] lien of said attachment on the lands described in the levy on said attachment and in the declaration in attachment dated from' the stated time of levy. The judgment provided that the plaintiff recover, not only against the defendant generally, but 'the premises levied upon under the attachment, to wit, [the lot in question as described]'; and that 'the judgment herein rendered is generally against said [defendant] in personam, and special against said lot of land;' and that 'the lien of said attachment on said land shall date from' the stated time of levy of the attachment.

The plaintiff purchaser excepted to the judgment in favor of the defendants, and to the disallowance of its amendments to the petition and the disallowance of plaintiff in fi. fa.'s intervention. In its exceptions to the judgment the plaintiff says that the judgment was error, because the defendants in the ejectment suit 'admitted a prima facie title to said lands in the plaintiff;' that defendants pleaded 'as a defense to the plaintiff's suit the excessive levy of the execution issuing upon the judgment, * * * which execution and levy of the same is an essential part of the plaintiff's title to said land;' that 'the verdict in said case * * * was a special verdict against said lands as well as a general verdict;' that 'the judgment in said case' was not only a general judgment, but 'a special judgment against said lot of land;' that the 'execution issuing upon said judgment * * * followed the judgment * * * and directed the sheriff * * * to make the amount of said execution out of said lot of land;' that 'said execution upon said judgment was levied upon said lot of land as the property of the defendant;' and that said lot was levied upon, sold to the plaintiff, and a sheriff's deed was made accordingly.

The plaintiff in error especially urges in its brief that excessiveness of levy was no defense, and there was no excessiveness of levy, since plaintiff in fi. fa. had a special lien against the lot in dispute, and a special judgment in rem against the lot, on which execution was issued and a levy and sale were made accordingly. Defendants in error by brief contend that in an attachment case such as this the defense of excessive levy was permitted, and that the evidence demanded a finding that the levy was excessive.

With reference to the question of excessive levy, the trial judge certified in the bill of exceptions, as follows: 'When it was suggested that the judge try the case without a jury, counsel for plaintiff stated

to the court that there was no issue of fact in the case, that the issue was whether the defendant, J. T. Hill, as owner of the land sued for, had a right to be made a party defendant and whether the levy in the case was void on account of being excessive; and further stated that if defendant produced evidence showing the levy was excessive, plaintiff would introduce no evidence to the contrary, but the plaintiff did not concede that the levy was excessive. The foregoing statements were made at the time the order submitting said cause to said judge was taken on July 15, 1941. The defendant, J. T. Hill, over objections but without exceptions thereto, was made a party defendant in said cause. Thereafter, under said agreement, said cause came on for trial before said judge, without a jury. Said defendant offered the evidence herein set out, including the testimony of the defendant, J. T. Hill, as to the excessiveness of the levy; and the plaintiff offered the amendments and interventions which were disallowed. No objection was made on the trial of said cause to the admission of the testimony as to the excessive levy. Plaintiff did not contest the same but through his counsel stated that he did not admit the testimony was sufficient to show excessive levy, and insisted that the evidence did not prove excessive levy. Said cause was tried before said judge on the question as to whether the amendments and interventions should be allowed, and as to whether the evidence was sufficient to show excessive levy. No objection was made, or intimation given, on the trial of said cause that an excessive levy could not be considered because the judgment and execution under which the levy was made was a special judgment. Now since the trial, and for the first time, plaintiff makes the objection and issue that the evidence of excessive levy was insufficient, for the reason that the judgment in the case was a special judgment against the lands in question. After the trial was had, it was suggested that the case be not argued orally by counsel for either party, but that counsel for each party submit briefs, and that the court take the case under advisement until September 6, 1941, and then decide the same, giving each party opportunity to submit a brief; and no oral arguments were made. Counsel for plaintiff submitted a brief in which he stated that the evidence submitted did not show an...