Opinion
33614.
DECIDED SEPTEMBER 12, 1951.
Bail trover; from Fulton Civil Court — Judge Arnold. March 29, 1951.
Phillips, Johnson Williams, for plaintiff.
Richard T. Nesbitt, Dunaway, Howard Embry, for defendant.
1. The record showing nothing to the contrary, presumptively the sale of the property to the defendant under the execution was properly and legally conducted. Thompson v. Selcer, 142 Ga. 809 (2) ( 83 S.E. 965). The evidence shows that the property sold at public outcry for a sum less than the amount of the execution, and under such circumstances, a finding that the levy was not excessive was demanded.
2. Under the foregoing ruling, if the admission in evidence, over the plaintiff's objection, of testimony of the plaintiff's witness, on cross-examination, as to the lump sum paid by the plaintiff when it purchased the machinery levied upon with several other pieces of machinery was erroneous, such error was harmless, and the finding made in favor of the defendant as to the No. 12 Van Norman Milling Machine was demanded under evidence otherwise legally admitted.
Judgment affirmed. Sutton, C. J., and Felton, J., concur.
DECIDED SEPTEMBER 12, 1951.
STATEMENT OF FACTS BY WORRILL, J.
Henry Hutchinson Incorporated, for the use and benefit of Joel T. Henry, transferee, sued V. M. C. Products Incorporated, in bail trover to recover possession of certain machinery alleged to be of the value of $4,890, in the possession of the defendant and alleged to be the property of the plaintiff. The defendant answered admitting possession of the property sued for, but denying that it was of the value alleged, and setting up by way of affirmative defense that the defendant had legal title to the property and that the plaintiff had no legal interest in or title to the said property. Upon the trial of the case, it appeared that the Revenue Commissioner of the State of Georgia issued a fi. fa. to collect the sum of $1306.26 due as unemployment-insurance contributions from the plaintiff; that the fi. fa. was levied on one No. 12 Van Norman Lathe or Milling Machine and one LeBlonde Lathe; that the defendant's agent who successfully bid in the No. 12 Van Norman Milling Machine had formerly been employed by the plaintiff using the machinery levied on; that after bidding in the milling machine he went to the plaintiff's place of business where the machine was located and took possession of it and delivered it to the defendant. In addition, it appeared that certain enumerated attachments and equipment intended to be used in connection with the milling machine were taken into the defendant's possession by said agent. These attachments and equipment, however, were not listed as having been levied upon. The evidence further showed that the sale of the machinery under the levy brought $808.45. This suit was to recover possession of the milling machine and the extra attachments and equipment. The trial court sitting as judge and jury entered an order finding in favor of the plaintiff for all the property sued for except the milling machine. To this order the plaintiff excepted.