Stewart v. Mundy , 131 Ga. 586 ( 1908 )

Lumpkin, J.

Where in a claim case the plaintiff in ñ. fa. fails to make out any prima facie case, and the claimants introduce no evidence, if the presiding judge, on motion, gives direction as to the disposition to be made of the case because of'such failure on the part of the plaintiff, he should dismiss the levy, not direct a verdict finding the' property not subject. Barnes v. Carter, 120 Ga. 895 (48 S. E. 387); Zipperer v. Mayor and Aldermen of Savannah, 128 Ga. 135 (57 S. E. 311); Equitable Mfg. Co. v. Davis, 130 Ga. 67 (60 S. E. 262). If the evidence introduced by the plaintiff did not merely fail to make a prima facie case, but-proved unquestionably that the property levied on was not subject, perhaps a direction of a verdict to that effect might not be erroneous. But we do not think that the case here made was one of such a character. The plaintiff filed an equitable petition in support of the issue made by the levy and claim. Without discussing the evidence, as the case is to be tried again, it is sufficient to say that it did not demand a finding for the claimants, certainly not as to one of them.

This is not a case depending entirely upon the question of whether the holder of a bond for title has a leviable interest in land; but is rather a proceeding to subject property, or an interest therein, which it is contended has been fraudulently conveyed so as to conceal it from a creditor and prevent its subjection, and is held by persons taking with notice thereof. Not only has this subject been deemed of sufficient importance to be dealt with by legislation (Civil Code, §§2695, 2681, 2682); and not only has it!been declared that every remedy and facility shall be afforded to creditors “to detect, defeat, and annul any effort to defraud them of their just rights” (Civil Code, §2687), and that courts of equity (or of law, having equitable powers, and upon proper pleadings) should assist creditors in reaching equitable assets in every ease where to refuse interference would jeopard the collection (Civil Code, §2688); but the constitution of the State itself declares that the General Assembly “shall provide, by law, for-reaching property of the debtor concealed from the creditor.” Civil Code, §5728.

In some cases direction might be given to set aside the verdict and enter an order to dismiss the levy, but the facts 'of this case are not such as to authorize that disposition.

Judgment reversed.

All the Justices concur.