Tumlin Co. v. Watson , 17 Ga. App. 462 ( 1916 )

Wade, J.

1. To a rule to distribute money the deputy sheriff made answer under oath and this answer was not traversed, and after hearing evidence on the trial of the rule the court passed an order reciting that there was no traverse to the answer of the deputy sheriff, and direct- ■ ing his discharge and-that the funds in his hands as such deputy sheriff be awarded to the distress warrant, which appeared from the answer to be “a superior lien.” The answer of the officer showed that the identical property sold under the mortgage fi. fa. was levied upon under the distress warrant contending for the funds, and that the fund in question was “subject to the distress warrant,” which “distress warrant is a superior lien.” “Until traversed, the answer of the sheriff is to be accepted as true, and is conclusive as to all matters therein contained, and evidence will not be heard to dispute it.” Read Phosphate Co. v. Weichselhaum Co., 1 Ga. 420 (58 S. E. 122). The answer of the officer positively asserts that the distress warrant is a superior lien, though it added the further qualification that it is “entitled, as he is informed and believes, to be first paid.” The assertion as to the superiority of the lien of the distress warrant is positive and unequivocal. The court did not err in ordering the discharge of the rule and entering up judgment in accordance with the untraversed answer of the officer.

Decided January 10, 1916.

Appeal; from Haralson superior court — Price Edwards, judge pro hac vice. January 20, 1915.

U. G. Broclc, Griffith & Matthews, for plaintiff in error. M. J. Head, contra.

2. Assignments of error not insisted upon in brief of counsel will not be considered. . Judgment affirmed.