Opinion
28315.
DECIDED JUNE 14, 1940.
Claim; from Floyd superior court — Judge Porter. December 13, 1939.
John Camp Davis, for plaintiff in error.
Leon Dean Covington, contra.
1. "When in the trial of a claim case the claimant admits the possession of the property by the defendant in fi. fa. at the time of the levy, he assumes the burden of showing that the title is in him and that it was not in the defendant at any time from the date of the judgment to the date of the levy." Melton v. Albany Fertilizer Co., 113 Ga. 603 ( 38 S.E. 958); Strickland v. Smith, 17 Ga. App. 505 (3) ( 87 S.E. 718).
2. The brief of evidence in the instant case recites that "it was agreed that defendant was in possession of the automobile truck on the date of the levy by the sheriff." The entry of levy recites that "within attachment" was levied on "one 1937 Model Dodge Truck Motor Number 14-22551, as the property of the defendant" (italics ours), while the retention-of-title contract under which Securities Investment Company claimed title to the truck levied on described a 1938-model truck having the motor number T41-22551. The jury, by direction of the court, returned a verdict in favor of F. M. Johnson, the plaintiff in fi. fa., and against Securities Investment Company, the claimant. The claimant's sole exception is to the judgment overruling its motion for new trial based only on the general grounds. Held, that the claimant failed to carry the burden of proving that title to the truck levied on was in it, and that the court properly overruled the motion for new trial.
Judgment affirmed. MacIntyre and Gardner, JJ., concur.