McEvoy v. Hussey , 64 Ga. 314 ( 1879 )

Bleckley, Justice.

In this case a possessory warrant was issued upon an affidavit made by Hussey as president of the St. Patrick’s Association, a corporation. Looking to that affidavit for the purpose of determining who was the party complainant, we are of opinion that the corporation was not a party. Certainly the corporation is no party to the writ of error in this court. The case here is McEvoy vs. Hussey, describing him as president of the corporation, but the corporation is no party, and, we think, was not a party to the possessory warrant.

The affidavit made by Hussey is signed by him as president, and it describes him in the body of it as president of the corporation. It alleges that the corporation had possession of certain books, office furniture, files, and regalia of the secretary. It does not allege that Hussey ever had possession of these articles in any capacity, but that the corporation had a quiet, peaceable and legally acquired possession, and that the chattels disappeared without his, deponent’s, consent, and that he in good faith claims a title to, and the possession of, the property. There is no allegation that the chattels disappeared without the consent of the corporation, or that the corporation claims any right to them whatever; so that we. come to the conclusion that the writ of error properly presents the parties; that is, that it is a case between MeEvoy and Hussey, was so originally, and that the corporation neyer was a party to the possessory warrant.

One of the objections made before the magistrate who issued and heard the warrant, was that the evidence did not make out any right in Hussey, as president, to get possession of this property, or to have possession of it. That, with various other questions, was made; and that question, we think, was decisive of this case.

On this warrant, under the evidence, there could be no award of possession to Hussey himself, nor to the society either, and therefore, we think, the magistrate erred, and that the certiorari ought to have been sustained upon that ground without reference to any other. The party that had had possession (Hussey had never had it) was not before the court, and is not here.

2. The 4032d section of the Code reads as follows :

Upon complaint being made on oatb by tbe party injured, bis agent or attorney in fact, or at law, to any judge of the superior, judge of the county court,or justice of the peace of the county in which the property in controversy may be, that any personal chattel has been taken, enticed, or carried away, either by fraud, violence, seducti on or other means, from the possession of the party complaining, or that such personal chattel, having recently been in the quiet, peaceable and legally acquired possession of such complaining party, has disappeared without his consent, and, as he believes, has been received or taken possession of by the party complained against, under some pretended claim, and without lawful warrant or authority, and that the party complaining does in good faith claim a title to or interest in the personal chattel, or the possession thereof, it shall be the duty of such judge or justice to issue a warrant, as well for the apprehension of the party against whom the complaint is made as for the seizure of the property in controversy, which warrant shall be directed to the sheriff, his deputy, or any lawful constable of the county aforesaid.

A comparison of the affidavit made by Hussey with the terms of the affidavit here laid down will show that what we have ruled above cannot be otherwise than correct.

Judgment reversed.