Drake v. Ward-Truitt Co.

Fish, C. J.

1. Where on the- trial of an issue in a statutory claim case the claimant did not, before the commencement of the introduction of evidence, admit possession in the defendant in execution, or in any manner claim the right to assume the burden of proof and to open and conclude the argument, but permitted the plaintiff in execution to assume the burden of proof and to open and conclude the introduction of evidence (both parties submitting evidence), it was too late, after the evidence had closed and before the argument began, for the claimant to assert for the first time the right to the opening and conclusion, on the ground that the entry of levy, which the plaintiff in execution had put in evidence, recited that the land was levied on as the property of the defendant, and that he was in possession at the time of the levy; and it was not error in such circumstances to allow the plaintiff in execution to open and conclude the argument to the jury. Taylor v. Brown, 139 Ga. 797 (3), 800 (77 S. E. 1062); Chandler v. Collins, 149 Ga. 64 (99 S. E. 38).

2. There was evidence to authorize the verdict finding the property levied on subject to the execution, and the court did not err in refusing a new trial.

Judgment affirmed.

All the Justices concur.

Claim. Before Judge Walker. Taliaferro superior court. May 34, 1931.

J. A. Mitchell, for plaintiff in error. A. G. Goluclce, contra.