Cavin v. McWhorter , 37 Ga. App. 477 ( 1927 )

Luke, J.

This case arises out of a judgment of the superior court “dismissing” a certiorari from a jury’s verdict in a claim case in a justice’s court, finding certain property subject to an execution. Briefly stated the record presents the following case: Cavin, a resident of Chattooga county, Georgia, had a farm lying partly in that county and partly in Alabama. Bowman, a half-cropper of Cavin’s, lived on the Alabama part of the farm and produced thereon a bale of cotton and 618 pounds of cottonseed. The property was levied on under an attachment sued out by McWhorter against Bowman as a nonresident. Cavin claimed the property and assumed the burden of proof. The property was levied on while Bowman was taking it to market with Cavin’s wagon. The crop had not been divided, and Bowman owed Cavin $50 for supplies.

1. Since the certiorari proceedings appear to have been in proper and legal form, the superior court should not have “dismissed” the certiorari.

(a) But since it appears that the intent of the court was to “overrule” the certiorari, we deem it proper to decide the case on its merits.

2. The ease is controlled by the laws of Georgia; and, under sections 3705 and 3707 of the Civil Code (1910), the title to the property levied on was in Cavin, the landlord, and not in Bowman, the cropper. It follows that the judgment'of the superior court was error.

Judgment reversed.

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