Wi1s0n v. Garrick

• Decision Date: 28 February 1884
• Citation: 72 Ga. 660
• Parties: Wi1s0n . vs. Garrick et al.
• Court: Georgia Supreme Court

72 Ga. 660

Wi1s0n . vs. Garrick et al.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1884.

Levy and Sale. Notice. Justices\' Courts. Presumption. Vendor and Purchaser. Before Judge Stewart. Coweta Superior Court. September Term, 1883.

Mrs. Sallie Wilson brought trover against M. J. Garrick and W. L. Carlton to recover a mule. The facts were, in brief, as follows: A judgment was recovered by Brantly, agent for Austin & Ellis, against William Wilson and Sallie Wilson, and execution issued and was levied on the mule in dispute. Mrs. Wilson interposed a claim, alleging that it had been set apart to her as an exemption for the benefit of herself and children, but the property was not replevied. Plaintiff made affidavit before the justice that it was expensive to keep and wash liable to deterioration, and prayed that the mule be sold and the money brought into court; and on the same day the magistrate granted an order to that effect, reciting that the case had been appealed to the superior court; and the sale was advertised and made by the constable on the next court day. Defendants claim under that sale, and its validity was the leading point in dispute. The application and order were objected to, but were admitted in evidence. They did not show notice of the application before granting the order. J. F. Methvin, Esq., for plaintiff, testified that at the sale one of the defendants asked him if he could safely buy the mule, and he replied that the mule was being sold illegally; that the officer was selling it without any authority of law at all, and that whoever bought it would get with it " a first-class lawsuit." Mrs. Wilson also denied service of the summons on which the judgment against her was founded.

The jury found for the defendants. Plaintiff moved for a new trial, on the following grounds:

(1.) Because the verdict was contrary to law and evidence.

(2.) Because the court charged as follows: "Gentlemen of the jury, if you shall be satisfied from the evidence in this case (and I express no opinion as to what the evidenceis) that the mule in controversy had been levied upon by a lawful constable under a fieri facias against the defendant, Sallie Wilson, who is the plaintiff in this action, and that plaintiff, said Sallie Wilson, had interposed a claim to said mule, but failed to replevy the mule or give a forthcoming bond in terms of the law, and that a claim suit was pending in court in respect to said mule, and that said mule remained in the hands of the constable, and that it was plainly made to appear to the justice of the peace of the district in whose court said claim suit was pending and in which the property was, that there was expense incident to keeping of the mule, and that it was liable to deteriorate in value, and an order for the sale of the said mule was made by said justice of the peace, and (hat said constable, in pursuance of such order, sold said mule on a regular sale day between the lawful hours of sale and at the established court ground, the same being the place where such sales are usually made, and the sale was fair and in accordance with the requirements of law, and defendant purchased the said mule fairly and innocently and in absence of all fraud or bad faith, then the plaintiff is not entitled to recover, and your verdict should be for the defendants. It is competent for the justice of the peace in such a case to order a sale of personal property of a perishable nature, and when such order is made by the justice of the peace, and the constable sells in pursuance of such order, and after observing all of the requirements of the law in such cases, and a person buys at such sale fairly and innocently and without fraud, then he...