Personal Finance Co. v. Evans

• Decision Date: 23 February 1932
• Docket Number: 21563.
• Citation: 163 S.E. 250,45 Ga.App. 53
• Parties: PERSONAL FINANCE CO. v. EVANS.
• Court: Georgia Court of Appeals

163 S.E. 250

45 Ga.App. 53

PERSONAL FINANCE CO. v. EVANS.

No. 21563.

Court of Appeals of Georgia, Second Division

February 23, 1932

Syllabus by Editorial Staff.

Officer knowingly levying on property exempted from process is trespasser, except that, in case of constitutional homestead levy is permissible where officer has received prescribed affidavit (Civ. Code 1910, §§ 3399, 3400, 3422).

Officer making wrongful levy and any others procuring such seizure are liable as joint trespassers, and aggrieved party may sue any one or all of such wrongdoers.

Either husband or wife can sue for damages from wrongful levy on homestead (Civ. Code 1910, § 3422).

Although wife or family of 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.

Allegations held sufficient, as against general demurrer, to show that property allegedly wrongfully levied on had been duly set apart as homestead.

Allegations were that property had been homesteaded, that homestead was in effect at time of the levy, that all the articles named in the petition were in the legal possession of 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 that the homestead was presented and demonstrated to defendant at and before seizure by the levying officer, and that the homestead and exemption papers exempting the property were issued by the ordinary of a named county of the state.

Allegations of petition seeking recovery for allegedly wrongful levy on homestead held sufficient to overcome any presumption of due performance of duty on part of levying officer.

Allegations were that defendant knew of the homestead, knew the contents thereof, that the agents of defendant assisted in making the levy, and that defendant illegally and without lawful authority went into plaintiff's house, under pretense of authority, with an officer of the law, and took therefrom the property named in the suit, and that all of such action was done willfully and wantonly by defendant.

Overruling general demurrer does not adjudicate that petition is good in every part, but merely that petition is not wholly bad.

Special demurrers not argued in Court of Appeals are considered abandoned.

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.

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

R Terry, of Columbus, for defendant in error.

Syllabus OPINION.

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...