Strickland Motors v. State

• Decision Date: 21 June 1950
• Docket Number: No. 2,No. 33092,33092,2
• Parties: STRICKLAND MOTORS INC. v. STATE
• Court: Georgia Court of Appeals

Page 254

60 S.E.2d 254

81 Ga.App. 824

STRICKLAND MOTORS INC. v. STATE.

No. 33092.

Court of Appeals of Georgia, Division No. 2.

June 21, 1950.

Syllabus by the Court.

The evidence for the State of Georgia that the automobile was subject to condemnation because seized upon a public highway of this State while illegally transporting in a 'Dry' county, more than one quart of intoxicating liquors, authorizing a verdict in favor of the State, and no error of law appearing, it was not error to overrule the motion for a new trial of the intervenor, who claimed a lien on said automobile, but who did not show to the satisfaction of the jury or as a matter of law that the automobile was not being so used without its knowledge, connivance or consent, express or implied.

This case arose by virtue of condemnation proceedings brought by the State, through Edwin A. Carlisle, as solicitor of the city court of Cairo, against one 1946 Mercury Club Coupe automobile, Motor No. 99A 13413129, and one Guy Kenimer, as owner thereof, to which proceedings Strickland Motors, Inc. filed its intervention, setting up that title to this automobile was in it and that it held a conditional sales contract thereon. It was alleged in the petition that this car was seized in Grady County, a 'dry' county, on May 21, 1949, by C. H. Strickland, Sheriff of that county, that same was being used for the purpose of transporting intoxicants on a public highway in said county, that Guy Kenimer, owner of the car, knowingly used the same in conveying and transporting prohibited alcoholic and intoxicating liquors, to-wit, 25 cases of pints of whiskey, and that the sheriff, after seizing the automobile, gave notice thereof to the State and the petition was filed within the time prescribed by law.

Thereupon said Strickland Motors, Inc., as owner of the car sought to be condemned, filed its intervention and defense, alleging that it held a conditional sales contract on the car, a copy of which it attached to the intervention, which contract it appeared was properly recorded in the clerk's office of Muscogee County, May 26, 1949, this being the county of the residence of J. C. Harrelson, to whom the intervenor had previously on May 6, 1949, sold this car, taking from this purchaser the conditional sales contract attached to the intervention to secure the payment to the intervenor of the sum of $1,318.86, the amount alleged to be due by the purchaser on the purchase price of this automobile, and which sum is now due on said car, and that the intervenor has a lien upon and right in this car for said sum. Intervenor further alleged that it had no knowledge of the use to which this car was being put at the time it was seized by the Sheriff of Grady County, and if it was used at such time illegally by another, same was done without the intervenor's knowledge or consent, express or implied, and that it has no interest except to protect the amount due it which is secured by said automobile and to which it claims title by virtue of said conditional sales contract.

Attached to the petition or intervention is the conditional sales contract referred to therein, in favor of the intervenor, which is dated May 6, 1949, and signed by J. C. Harrelson, properly witnessed, and which describes the car seized by the sheriff, under which contract 'title to' this car 'shall remain in the seller or assigns until fully paid according to the tenor of an agreement and promissory note (not as payment but as evidence of the amount to become due hereunder) executed contemporaneously herewith, and until all other indebtedness whether now existing or which may hereafter be incurred shall be paid.' The amount of $1,318.86 appears from said contract and note as due on the car by the purchaser, Harrelson. In addition to providing that title to the automobile 'shall not pass by delivery to the buyer, but shall remain in the seller', it is provided in the contract that 'the car be not removed temporarily or permanently from the county in which the buyer now resides, or be sold or encumbered or otherwise disposed of, or be used for carrying passengers for hire without the written consent of the holder, or be used for carrying intoxicating liquors.'

This intervention was allowed and the Strickland Motors, Inc. made a party to these proceedings in the city court of Cairo.

The case came on for trial before Hon. G. L. Worthy, judge of said city court, and a jury, and after the conclusion of the evidence and the charge of the court and argument of counsel, the jury rendered a verdict in favor of the State and against the claim of lien of the intervenor. Judgment was accordinly entered thereon.

Intervenor moved for a new trial on the general grounds, and by amendment added certain special grounds, and to the judgment of the court overruling and denying said motion for new trial as amended, intervenor, Strickland Motors, inc. except.

Ed Wohlwender, Jr., John H. Land, J. Walter Owens, Jr., all of Columbus, for plaintiff in error.

Edwin A. Carlisle, Sol., Cairo, Bell & Baker, Cairo, for defendant in error.

GARDNER, Judge (after stating the foregoing facts.)

1. Was the evidence sufficient to authorize the jury to render a verdict in favor of the State and against the claim of lien of the intervenor as to this automobile? It is conceded that Grady County is a 'dry' county. It appears without dispute that the automobile was seized by the sheriff of Grady County while in the possession of one Guy Kenimer and was, at the time, on a public highway of this State in said county and was being used to transport, in a dry county, more than one quart of tax paid liquor. The automobile was not sold by intervenor to the person driving it when it was seized carrying i5 cases of liquor in pints. There is no dispute but that the car had beensold May 6, 1949, by the intervenor to J. C. Harrelson. Harrelson testified that he had not parted with title to the car. It was seized May 21, 1949. The car ws sold in Muscogee County and seized in Grady County.

Where more than one quart of taxed, stamped liquor is being transported in a 'dry' county, the vehicle is...