Pers. Finance Co v. Evans

• Decision Date: 23 February 1932
• Docket Number: No. 21563.,21563.
• Citation: 163 S.E. 250,45 Ga.App. 53
• Parties: PERSONAL FINANCE CO. v. EVANS.
• Court: Georgia Court of Appeals

45 Ga.App. 53

163 S.E. 250

PERSONAL FINANCE CO.

v.EVANS.

No. 21563.

Court of Appeals of Georgia, Division No. 2.

Feb. 23, 1932.

Syllabus by Editorial Staff.

Error from City Court of Columbus; G. Y. Tigner, Judge.

Suit by A. B. Evans against the Personal Finance Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

See, also, 163 S. E. 252.

McGehee & Odom and Foley & Chappell, all of Columbus, for plaintiff in error.

R. Terry, of Columbus, for defendant in error.

Syllabus Opinion by the Court

BELL, J.

1. Any officer knowingly levying upon property which has been made exempt from the process by either of the methods provided by law shall be guilty of a trespass, except that, in case of the constitutional homestead a levy is permissible where the plaintiff, his agent or attorney, makes and places in the hands of the officer the affidavit prescribed by law. Civil Code 1910, §§ 3399, 3400, 3422; Marcrum v. Washington, 109*Ga. 296 (2), 34 S. E. 585.

2. Where an officer makes an unauthorized and wrongful levy upon the property of another, he and any others who procure such a seizure are liable as joint trespassers, in which event the aggrieved party may bring suit against any one, or all of such wrongdoers, according to his election. Evans v. Cannon, 34 Ga. App. 467 (2), 130 S. E. 76; Finley v. Southern Railway Co., 5 Ga. App. 722 (3), 64 S. E, 312.

3. Although it is declared by law that the wife or family of the debtor may recover for their exclusive use for such a trespass, the right to sue is not limited to the wife or family, but the husband as the head of the family can maintain the action, and will hold the recovery, if any, for their use. McWilliams v. Anderson, 68 Ga. 772; Crowley v. Freeman, 9 Ga. App. 1 (2), 70 S. E. 349. This is not to hold that the husband and wife may each bring a separate action. That question is not raised in the present case.

4. In a suit by a husband as the head of a family to recover damages for the procuring of a wrongful levy on property claimed to be exempt as a homestead, allegations that "said property had been homesteaded, " and that the homestead was "in effect" at the time of the levy, that "all the articles herein named were in the legal possession of [the plaintiff] as head of a family consisting of a wife and minor daughter, and had been set apart for their use under the laws of the State of Georgia, " that "the said homestead was presented and demonstrated to said defendant" at and before the seizure by the levying officer, and that "the homestead and exemption papers exempting said property" were issued by the ordinary of a named county of this State, were sufficient, as against a general demurrer, to show that the property had been duly set apart as an exemption or homestead in one of the methods prescribed by law, although it may not appear which kind of homestead the plaintiff obtained. Such allegations implied a valid homestead, and would constitute an adequate basis for the admission of evidence of that fact. Davis v. Jones, 95 Ga. 788 (3), 23 S. E. 79; Evans v. Rounsaville, 115 Ga. 684 (2), 42 S. E. 100; Kimsey v. Rogers, 166 Ga. 176 (8), 142 S. E. 667; Evans v. Barrett, 8 Ga. App. 612, 69 S. E. 1083; Tribble v. State, 33 Ga. App. 370 (1 a), 126 S. E. 272; Yellow Cab Co. v. General Lumber Co., 35 Ga. App. 620 (1), 134...