Odom v. Trantham , 81 Ga. 713 ( 1888 )

Simmons, Justice.

1. "Wetkink tkat tke judgment of tke magistrate was rigkt, under tke facts disclosed in tke record of tkis case. Tke evidence skows tkat plaintiff lent tke mackine to tke defendant witkout any fraudulent misrepresentation ky tke latter. If ske tkus lent it, of course it kad not been “taken, enticed or carried away, either by fraud, violence, seduction or other means,” from her possession, but ske voluntarily parted with the possession of it, and placed it in tke hands of tke defendant; and under this state of facts, a possessory warrant will not lie, and the magistrate was right in so holding.

2. But it is said that the judge of the superior court overruled the certiorari upon a different ground, to wit, that she did not charge, in her affidavit to obtain the 'warrant, that the machine had “disappeared without her consent.” We think that if that was the ground the judge below put his judgment on, he was right in that also. The warrant seems to have béen sued out under the second clause of section 4032 of the code. She did not rely on the first clause of the section, and charge that the machine had been taken and carried away by fraud, violence, etc.; but she relied upon the fact that it had “been recently in her possession, and had been taken possession of by defendant under some pretended claim, without lawful warrant or authority,” and that she claimed title to the machine. She failed to state, in accordance with this clause of the section that the machine had “disappeared without her consent.” We suppose, from what she testified to before the magistrate, that she could not truthfully make that part of the affidavit as required by the statute, because the machine had not disappeared without her consent, she having loaned it to the defendant. We therefore think that the judge of the superior court was right in holding that the warrant was void, and that no valid judgment could be pronounced upon it.

The case of Peak vs. Cogborn, 50 Ga. 562, relied upon by. the plaintiff in error, is entirely different in its facts from the case under consideration. In that case, Peak got the horse from Cogborn by wilful misrepresentation, and by telling Cogborn that he. only wanted to change horses for a day or two, and promised to return Cogborn’s horse to him. After thus getting possession .of the horse, Peak refused to return it to Cogborn.; and this court held that he obtained it by a fraudulent trick, and that under the first clause of the above quoted section of the code, a possessory warrant would lie.

Judgment affirmed.