Southern Oldsmobile Co. v. Baker , 1920 Ga. App. LEXIS 88 ( 1920 )

Luke, J.

The Southern Oldsmobile Company foreclosed against Mrs. Annie Baker, as administratrix of George D. Baker, deceased, its mortgage on a certain automobile, executed by the decedent to secure a debt of $1,050, “for value received.” The entry of levy recites that the property was “found in the possession of Mrs. Annie Baker.” A statutory claim was interposed by Mrs. Baker, denying that the automobile was the property of the estate of her deceased husband, George D. Baker, and asserting that it was her own individual property. Upon the trial the judge directed a verdict finding the property not subject to the mortgage fi. fa. The plaintiff thereupon moved for a new trial, which was overruled, and it excepted.

1, 2. The first and second headnotes need no elaboration.

1-6. Upon the trial of the claim the plaintiff in fi. fa. made out a prima facie case, in accordance with the principles stated in the first headnote. The claimant established her superior right under the principles stated in the second headnote. The mortgage did not on its face show that it was given to secure purchase-money; and the claimant showed that she was the widow of the deceased mortgagor, and put in evidence an exemplification of the record of a proceeding in the court of ordinary, setting apart to her, out of the mortgagor’s estate, the identical automobile in question, as a year’s support. The exemplification from the court of ordinary was upon its face regular and complete in all respects, the final judgment of the ordinary reciting that “ citation had issued and been published as required by. law.” The citation itself was dated December 3, 1918, while the final judgment of the ordinary was dated January 6, 1919. ' In rebuttal of the claimant’s showing, the plaintiff in fi. fa. offered to prove that one issue of the official organ of the county between those two dates, to wit, the issue of January 1, 1919, did not contain any notice of the said proceeding in the court of ordinary; but this evidence was excluded by the court, and the judgment excluding it is assigned as error.

By section 4043 of the Civil Code (1910) it is required that, upon the “filing of the return of appraisers setting apart a year’s support, “the ordinary shall . . publish notice as required in the appointment of permanent administrators.” By section 3970, with reference to permanent administrators, it is provided that “The ordinary must issue a citation, giving notice of the application to all concerned, in the gazette in which the county advertisements are usually published, once a week for four weeks.” In so far as the publication of notice is concerned, the sole requirement of section 4043 therefore is publication “ once a. week for four weeks.” In Bentley v. Shingler, 111 Ga. 780 (2) (36 S. E. 935), the Supreme Court, in dealing with the same expression in a different statute, but upon substantially similar facts, held: “A statutory requirement that a given advertisement shall be published in a designated newspaper ‘once a week for four weeks,’ before a particular thing can lawfully be done, is complied with if the advertisement be inserted in that paper four times, in as many separate, consecutive weeks, and the first insertion is made in an issue of the paper published twenty-eight or more days before the thing in question is done.” Under that decision the excluded evidence, even if it had been admitted, could have served no lawful purpose. It could have shown only that the notice was not published in the last of five weeks in which it might have been published, and would not even have tended to contradict the recital in the judgment that it had been published as required by law. But it is insisted that the language of section 6063 of the Civil Code (1910) makes it necessary for the advertisement to run during the four weeks “immediately preceding the term or day when the order is to be granted.” A sufficient reply to this contention is that the purpose of the provisions of section 6063 was to relax, and not to increase, the stringency of the provisions of the older sections of the code to which section 6063 relates. While this section expressly declares that publication during the last four weeks “shall be sufficient,” yet it nowhere declares, either expressly or by necessary implication, that the first four out df five preceding weeks shall be insufficient. Furthermore, on leaving the letter of the. law and looking to its practical application, to advertise during the first four rather than the last four weeks of a given five-weeks period would seem to be to the advantage of none but those who would resist the thing contemplated, in that it gives them one week more in which to prepare to resist the object of the person causing the notice to be given. We think, therefore, that the complaint is wholly without merit.

7. The evidence admitted demanded the verdict directed. The evidence excluded would not have changed the result if it had been admitted. For no reason assigned in the motion for a new trial was the plaintiff in fi. fa. entitled to have the verdict set aside or a new trial granted.

Judgment affirmed,

Broyles, C. J., and Bloodworth, J., concur.