Davis v. Reid , 57 Ga. 188 ( 1876 )

Bleckley, Judge.

1. The sheriff is not commanded by the law or by the writ, to levy on all property in the defendant’s possession. The command is to levy on the goods and chattels, lands and tenements of the defendant. Possession is evidence, prima facie, of ownership: Cowart vs. Dunbar, 56 Georgia Reports, 417; but the sheriff may, at his peril, take notice of the true title; and when he answers to a rule that he could find no property of the defendant on which to levy, he has made a good answer, in substance, and one that protects him unless it is traversed. That there was property of a certain value in the defendant’s possession while the writ was in the hands of the sheriff, is enough to change the onus; and, that much appearing, it will devolve upon him to vindicate his answer, either by showing exclusive title in some person other than the defendant, or that the property in question, though belonging to defendant, was exempt from levy and sale.

2. We gather from the argument of counsel that the sheriff's answer was deemed insufficient, and was stricken, because it did not respond to what was alleged in the rule nisi touching the possession of certain property by the defendant. As the answer was good, in substance, to the gravamen of the rule, the objection that it did not make discovery as to the alleged possession should, if available at all, have been taken by special demurrer, instead of by general demurrer as was done. If a defect of this sort had been pointed out specifically it might have been amended.

How can the plaintiffs in the execution admit what is stated in the sheriff's answer, and still entitle themselves to a rule absolute? If the answer is true, the sheriff could find no property belonging to the defendant. If it is not true, let it be traversed, and let the sheriff have an opportunity of supporting it by proof if he can: 34 Georgia Reports, 346.

'Judgment affirmed.