Strobel v. Gormley

• Decision Date: 11 January 1935
• Docket Number: No. 24024.,24024.
• Citation: 50 Ga.App. 358,178 S.E. 192
• Parties: STROBEL. v. GORMLEY, Superintendent of Banks.
• Court: Georgia Court of Appeals

50 Ga.App. 358

178 S.E. 192

STROBEL.

v.GORMLEY, Superintendent of Banks.

No. 24024.

Court of Appeals of Georgia, Division A.

Jan. 11, 1935.

Syllabus by the Court.

1. In the absence of proof to the contrary, the legal presumption is that an execution has been satisfied when a levy under it is not accounted for, or the dismissal of the levy is not explained, but this presumption may be rebutted by the facts of the case. In the instant case, the levy was accounted for, and its dismissal explained, and the trial judge properly allowed the execution to be Introduced in evidence.

2. The remaining special grounds of the motion for a new trial, which concern the alleged improper introduction of evidence, disclose no reversible error.

3. Where a creditor causes his execution to be levied on personal property as the property of the defendant in fi. fa., and the defendant's wife flies a statutory claim to the property, based upon a bill of sale older then the creditor's judgment and execution, and the property levied on is found in the possession of the defendant in fi. fa., and the creditor attacks the bona fides of the bill of sale, the burden rests upon the claimant to show that the transaction between her and her husband is fair, and the mere Introduction of said bill of sale in evidence does not shift this burden to the plaintiff in fi. fa.

4. "A claim case is in the nature of an equitable proceeding, and, where transactions between relatives are under review, slight circumstances are often sufficient to induce belief on the part of a jury that there was fraud and collusion between the parties, and authorizes them to find against the claimant, and in favor of the plaintiff in fi. fa."

5. Under the facts of this case, it cannot be held that the trial judge had not the right to find the property subject to the execution, and he did not commit error in overruling the motion for a new trial.

Error from City Court of Thomasville; Roscoe Luke, Judge.

Execution proceeding by R. E. Gormley, Superintendent of Banks for the state of Georgia, in charge and possession of the Bank of Thomasville, in liquidation, wherein Modena Strobel was claimant. Judgment for plaintiff in execution, claimant's motion for a new trial was overruled, and claimant brings error.

Affirmed.

W. H. Titus, of Thomasville, for plaintiff in error.

Alexander & Jones, of Thomasville, for defendant in error.

MacINTYRE, Judge.

"R. E. Gormley, superintendent of banks for the state of Georgia, in charge and possession of Bank of Thomasville, in liquidation, " procured a judgment for $2,541.59 against F. A. Strobel. The execution issued on this judgment was levied on certain personal property as the property of the defendant. Mrs. Modena Strobel, wife of P. A. Strobel, filed her claim to said property, and, upon the trial of the claim case on January 30, 1934, before the court without the intervention of a jury, the property was found subject to the levy. The claimant's motion for a new trial was overruled, and she excepted.

It appearing from the entry of levy on the execution that the property levied on was found in the possession of the defendant in fi. fa., the claimant assumed the burden of proof. We quote from the brief of evidence as follows:

"The.claimant introduced the following documentary evidence: Bill of sale covering the property now in question, from Frank A. Strobel, defendant in fl. fa., to Mrs. Modena Strobel, claimant, dated 17th day of February, 1932, and recorded in office of clerk of the superior court, Thomas county, Georgia, on 29th of February, 1932. Also execution issued from Thomas superior court on the 21st of October, 1932, in favor of Ethel Dekle Strobel, and against the defendant in fi. fa., Frank A. Strobel, together with the sheriff's entry of levy thereon covering the same personal property now in question, also certified copy of the claim affidavit and bond filed in Thomas superior court on the 28th of November, 1932, in which Mrs. Modena Strobel, the claimant in this case, claimed the property levied on under the above execution, and the verdict rendered on the trial of said claim case, as follows: 'We, the jury, find the property subject to levy, and that the levy proceed. This 17th day of April, 1933.' "

The brief of evidence recites that the plaintiff in execution introduced the following documentary evidence: "1. Fi fa issued against F. A. Strobel in favor of R. E. Gormley, superintendent of banks for the State of Georgia, in charge of Bank of Thomasville, in liquidation, on the 29th day of September, 1932, together with the entry of levy of the sheriff thereon and all other entries.

2. Tax returns of F. A. Strobel in Thomas county, Georgia, for years 1930 and 1931, said tax returns showing that the property, or part of the property in question was returned by P. A. Strobel in Thomas county, Georgia, for taxation, and not returned by Mrs. F. A. Strobel. 3. Application of Mrs. Modena Strobel for homestead setting aside sixteen hundred dollars worth of property to Mrs. Modena Strobel, which said application alleges that F. A. Strobel refuses and declines to make application for homestead; also the schedule of property set aside in the homestead, a list of the creditors, and the order of the ordinary approving same. 4. The two notes on which judgment was obtained, and upon which the fl. fa. as levied in this case was issued, as follows: one note dated January 18th, 1932, due April 18th, 1932, for the principal sum of $595, and the second note, dated December 15th, 1931, due March 2d, 1931, for the principal sum of $1,585, both' of which notes bear the following clauses: And for the further consideration of $1 to me in hand paid, and for the purpose of securing the payment of this note, I hereby transfer, assign, and convey to the owner of this note so much of my homestead and exemption as will pay this note in full * * *, and I hereby direct the trustee in bankruptcy to deliver to the owner of said note a sufficient amount of property or money claimed or set apart as exempt, to pay off this indebtedness, and this shall be his authority therefor. I hereby waive and renounce for myself and family all homestead and exemption rights I or they may have under the constitution and laws of this State, or any other State of the United States, including the waiver of exemption allowed in the United States bankruptcy laws, as against this debt or the renewal thereof."

The brief of evidence recites: "On 20th day of May, 1933, certain personal property of said F. A. Strobel was levied upon under and toy virtue of the said fl. fa., and on the 3rd day of June, 1933, the said levy and entry of levy was dismissed by the plaintiff in execution, the said entry of dismissal being: 'The within levy Is this day dismissed by plaintiff in execution, this 3rd day of June, 1933. Alexander & Jones, by Randolph A. Jones, attorneys for plaintiff in execution.' "

Randolph A. Jones, of counsel for the plaintiff in execution, testified as follows: "The said levy was dismissed because there was no affidavit filed that the property was subject to levy, the said F. A. Strobel having on che 17th day of May made application to R. S. Burch, ordinary of Thomas county, Geor gia, for a homestead on said property, and said application having been granted on the 17th day of May, 1933. For this reason if. was necessary, or we deemed it advisable, to file an affidavit stating that the property levied upon was subject to levy. Therefore it was necessary to dismiss the first levy, and file an affidavit and relevy on said property. I instructed the sheriff that the levy was being dismissed for the sole purpose of making another levy, and requested that he make another levy on the same property. Another levy was made, as shown on the fl. fa., but between the time the first levy was made there was considerable property disposed of by the defendant in execution, and for this reason the second entry of levy is somewhat different from the first entry of levy. There was no money obtained under the first levy, and no advantage was obtained by the plaintiff in execution. The property was left in the possession of F. A. Strobel, and there was no harm done whatever to F. A. Strobel by the dismissal referred to."

Sheriff G. E. Davis, sworn for the plaintiff in execution, testified: "Mr. Jones instructed me at the time that they were dismissing the levy for the purpose of filing an affidavit, and that we would then relevy on said property. Mr. Jones told me then that I would have to go to Strobel's office and make another levy. Yes, I did make a second levy. After making the first levy the property was left in Mr. Strobel's possession, and it has been left in his possession since the second levy. It has been in his possession at all times since the first and second levies. Mr. Strobel had a Chrysler automobile when I made the first levy. He did not have it when I made the second levy." On cross-examination, sheriff Davis testified: "At the time I made this first levy I left the property in Strobel's office in his care and charge. I did not move it. * * * I made him custodian of the property. I did not require him to give bond when I made the second levy. He could have done that at his own leisure. I do not know whether he gave bond or not. The Chrysler automobile * * * was disposed of between the first and second levies. In other words, at the time the car was disposed of there was no levy on it, only the first levy."

The brief of evidence recites that: "On the 29th day of September, 1932, judgment was obtained on said notes for the sum of $2,541.59, and execution issued on said debt against F. A. Strobel and in favor of R. E. Gormley, Superintendent of banks for the State of Georgia."

The first special ground of the motion for a new trial avers that the court erred in admitting in evidence the "fi. fa. issued against F. A. Strobel, in favor of R, E. Gormley, superintendent of banks...