Opinion
16992.
APRIL 10, 1950.
Claim to land. Before Judge Pratt. Gwinnett Superior Court. December 5, 1949.
Allison Pittard and John C. Houston, for plaintiffs.
Joseph D. Quillian and A. G. Liles, for defendant.
Under the record in the instant claim case, where the entry of levy did not disclose in whose possession the property was found at the time of the levy, it was error for the court to require the claimants to assume the burden of proof.
No. 16992. APRIL 10, 1950.
This is a claim case emanating from a levy upon realty. A fi. fa. in favor of Mrs. Rose S. Michael and against Mrs. O. R. Whitlock was levied upon a dwelling house and lot. A claim thereto was filed by Mrs. O. R. Whitlock and her son Rufus Whitlock, as executors of the estate of Mrs. Whitlock's husband.
One ground of the amended motion for new trial alleges error in requiring the claimants to assume the burden of proof, where it did not appear from the return of the levy that the property claimed was in possession of the defendant in fi. fa. at the time of the levy. On this question the original return of the levy did not state who was in possession of the property. The writ of error was filed in this court December 29, 1949. Subsequently, on February 13, 1950, by agreement of counsel there was filed here an amendment to the levy, as follows: "R. R. Martin, Deputy Sheriff, amends this levy as follows: Said property levied as the property of Mrs. O. R. Whitlock and in her possession. This September 5th, 1949. R. R. Martin, Deputy Sheriff." The case was tried on this date and Mrs. O. R. Whitlock was the defendant in fi. fa. The amendment bore no approval of the trial judge, nor did the agreement of counsel contain the order of any court.
The original entry of levy did not disclose in whose possession the property was found at the time of the levy, and therefore, under Code § 39-904, the burden of proof was upon the plaintiff in execution, and not upon the claimant. Singer Sewing Machine Co. v. Crawford, 34 Ga. App. 719 (3) ( 131 S.E. 103).
The amendment to the levy, which, by consent of counsel, was sought to be made a part of the record in this court, if given consideration as part of the record, would not change the status of the return of the original levy. While, under Code § 24-2815, the officer could amend his return of levy, yet, after the claim was filed and the papers returned to court, the return of levy could not be amended without permission of the court to do so. Smith v. Rothschild Co., 13 Ga. App. 293 (4) ( 79 S.E. 88).
In view of the foregoing ruling, it is unnecessary to pass on other grounds of the motion for new trial.
Judgment reversed. All the Justices concur.