Krasner v. Croswell, 31841.

• Decision Date: 28 January 1948
• Docket Number: No. 31841.,31841.
• Citation: 46 S.E.2d 207
• Parties: KRASNER . v. CROSWELL et al.
• Court: Georgia Court of Appeals

46 S.E.2d 207

KRASNER .

v.CROSWELL et al.

No. 31841.

Court of Appeals of Georgia, Division No. 1.

Jan. 28, 1948.

Syllabus by the Court.

Where, in a claim case involving personal property, the claimant admits a prima facie case in favor of the plaintiff in fi. fa. but introduces uncontradicted evidence of her title, thereby rebutting the prima facie case, and there are no facts or circumstances inconsistent with the truth of the claimant's evidence by reason of which the jury might legitimately question the credibility of the witnesses on account of their interest in the result of the suit, and nothing more appears, a verdict in favor of the plaintiff in fi. fa. is unauthorized and without evidence to support it.

Error from Civil Court, Fulton County, Appellate Division.

Proceeding on levy of a fi. fa. in favor of Helen J. Croswell, wherein Mrs. Dora B. Krasner interposed a statutory claim. To review judgment affirming judgment in favor of plaintiff in fi. fa. and against claim, claimant brings error.

Judgment reversed.

Mrs. Dora B. Krasner interposed a statutory claim to certain property upon which the Deputy Marshall of the Civil Court of Fulton County had levied for costs of court against her husband, Norman Krasner. Upon the trial of the case before a jury a verdict was returned in favor of the plaintiff in fi. fa. and against the claim. The claimant moved to set the verdict aside, to arrest the judgment and for a new trial. These motions were overruled and the claimant appealed to the Appellate Division where the judgment of the trial judge was affirmed. To this judgment of affirmance the claimant excepted.

D. W. Krasner, of Atlanta, for plaintiff in error.

Robert P. McLarty and Paul H. Anderson, both of Atlanta, for defendant in error.

FELTON, Judge.

The levy, which appears in the brief of evidence, was so inaccurate as to fail completely to show that the defendant in fi. fa. was in possession of the property at the time of the levy, or, in fact, upon whose property the levy was made. Under such circumstances the burden of proof would ordinarily have been upon the plaintiff in fi. fa. to establish ownership of the property in the defendant in fi. fa., Singer Sewing Machine Co. v. Crawford, 34 Ga. App. 719, 131 S.E. 103, unless the claimant admitted a prima facie case in behalf of the plaintiff in fi. fa., Jarrard v. Mobley, 170 Ga. 847, 154 S.E. 251; Code, § 39-904; however, in view of the order of the introduction of evidence, first by the claimant, it is inferred that the claimant assumed the burden of proof. Calhoun v. Williamson, 189 Ga. 65, 5 S.E.2d 41, and the claimant having assumed the burden of proof admitted a prima facie case for the plaintiff in fi. fa., Strickland v. Smith, 17 Ga.App. 505, 87 S.E. 718; Sexton v. Burruss, 144 Ga. 192, 86 S.E. 537. Under such circumstances it was encumbent upon the claimant to prove her title to the property by evidence sufficient to overcome the prima facie case of the plaintiff in fi. fa. The claimant introduced to support her claim of title the testimony of her husband, Norman Krasner, of her brother-in-law, David W. Kras-ner, who had acted as her agent and attorney in purchasing the property involved, and the testimony of R. L. Henry, Sr., one of her grantors. She also testified in her own behalf and introduced in evidence bills of sale and two checks which were used in purchasing the property. This testimony was uncontradicted and unless there were circumstances in the case inconsistent with the truth of the evidence by reason of which the jury might legitimately question the credibility of Norman and David Krasner, relatives of the claimant, by reason of their interest in the result of the suit, the jury could not disregard this evidence and find in favor of the plaintiff in fi. fa. "The testimony of witnesses who swear positively, and are not otherwise impeached or discredited, should not be discarded merely because they are related to the party in whose behalf they testify, although it is proper for the jury to consider such relationship when there is other matter by reason of which they may legitimately question the credibility of the testimony." Neill v. Hill, 32 Ga.App. 381, 123 S.E. 30, and cit.; Detwiler v. Cox, 120 Ga. 638, 48 S.E. 142. It is "taken for granted that a jury cannot discredit the testimony of [even] a party at interest in a case, when there are no facts or circumstances before them which conflict with it." Armstrong v. Ballew, 118 Ga. 168, 44 S.E. 996, 997. The question in the instant case, therefore, resolves into whether or not there were any facts or circumstances which were in conflict with or contradictory to the claimant's title to the property such as would warrant the jury's disregard of the positive evidence of title in the claimant. It appears from the claimant's evidence that she being in business in Alabama desired to engage in the manufacture of concrete blocks; and, acting...