Whitlock v. Michael , 206 Ga. 749 ( 1950 )

206 Ga. 749 (1950) 58 S.E.2d 833

WHITLOCK et al., executors,
v.
MICHAEL.

16992.

Supreme Court of Georgia.

April 10, 1950.

Allison & Pittard and John C. Houston, for plaintiffs.

Joseph D. Quillian and A. G. Liles, for defendant.

ATKINSON, Presiding Justice.

(After stating the foregoing facts.) The original entry of levy did not disclose in whose possession the property was found at the time of the levy, and therefore, under Code § 39-904, the burden of proof was upon the plaintiff in execution, and not upon the claimant. Singer Sewing Machine Co. v. Crawford, 34 Ga. App. 719 (3) (131 S.E. 103).

The amendment to the levy, which, by consent of counsel, was sought to be made a part of the record in this court, if given consideration as part of the record, would not change the status of the return of the original levy. While, under Code § 24-2815, the officer could amend his return of levy, yet, after the claim was filed and the papers returned to court, the return of levy could not be amended without permission of the court to do so. Smith v. Rothschild & Co., 13 Ga. App. 293 (4) (79 S.E. 88).

In view of the foregoing ruling, it is unnecessary to pass on other grounds of the motion for new trial.

Judgment reversed. All the Justices concur.