Opinion
35996.
DECIDED JANUARY 24, 1956. REHEARING DENIED FEBRUARY 17, 1956.
Distress warrant. Before Judge Cooper. Augusta Municipal Court. September 26, 1955.
Harris, Chance McCracken, Otis W. Harrison, for plaintiff in error.
Claud R. Caldwell, contra.
The trial judge hearing the case without the intervention of a jury did not err in rendering judgment for the plaintiff in fi. fa. and against the claimant.
DECIDED JANUARY 24, 1956 — REHEARING DENIED FEBRUARY 17, 1956.
On November 16, 1954, Claude R. Caldwell filed a distress warrant against W. M. Dabney and P. L. Dabney, doing business as Dabney Son, for rent due on a warehouse located at 2330 Ada Ramp Walton Road, Augusta, Georgia. On November 17, 1954, J. C. Wilson, Deputy Sheriff, Municipal Court, City of Augusta, executed the distress warrant by levying on certain described personal property which included a Caterpillar D-7 tractor, serial No. 3T542. On December 8, 1954, H. O. Houk, Jr., as agent of Yancey Bros. Company, filed a claim affidavit in which it was alleged that the Caterpillar D-7 tractor was not the property of the defendant in fi. fa. and that it was the property of the claimant. Attached to the claim affidavit was a copy of a conditional-sale contract between the claimant and the Aiken Paving Company executed June 21, 1954, and bearing the caption "Aiken, 6-21-54, Aiken County, South Carolina."
On the trial of the case, W. O. Houk, Jr., the only witness presented in behalf of the claimant, presented evidence substantially as follows: He identified a conditional-sale contract dated June 21, 1954, between the claimant and Aiken Paving Company; this contract was signed by W. M. Dabney for the purchaser, Aiken Paving Company. He also identified a conditional-sale contract dated July 21, 1953, between the claimant and "Dabney Son," which was signed by W. M. Dabney for the purchaser, Dabney Son. Both of these contracts were introduced in evidence. He testified that he saw W. M. Dabney sign both contracts, that Dabney got behind in the payments under the contract dated July 21, 1953, and that this contract was refinanced by the contract dated June 21, 1954. The 1953 contract was recorded in the Office of the Clerk of the Superior Court of Richmond County, Georgia, on July 28, 1953, and was marked "paid in full" on the reverse side. He further testified that the described tractor was the property of the claimant at all times mentioned, and was now the property of the claimant.
On cross-examination this witness testified as follows: All the items listed in the conditional-sale contract dated July 21, 1953, were repossessed with the consent of Dabney. He didn't know what credit was given on the contract. He didn't know the balance due on the tractor. Dabney Son could not pay for it; therefore, the claimant took the equipment back. He did not consider the contract paid, but it was old, dead, the deal was called off, they lost money on the deal, and were not satisfied, although they did get the equipment back. When the second conditional-sale contract was entered into that he thought Mr. Dabney said his main office was in Aiken, South Carolina, at his home. At the time the conditional-sale contract dated June 21, 1954, was entered into he did not know where the D-7 caterpillar tractor was located. He identified certain exhibits of the plaintiff in fi. fa. showing billings from the Atlanta office of the claimant to the defendant in fi. fa. at the Augusta, Georgia, address, both before and after the conditional-sale contract dated June 21, 1954, was executed.
The plaintiff in fi. fa. was then sworn and testified as follows: For a year prior to June 21, 1954, the tractor was kept in the warehouse located at 2330 Ada Ramp Walton Road, Augusta, Richmond County, Georgia, most of the time, that since the summer of 1954 this tractor has been locked up in the warehouse located at that address, and that during that time the defendant in fi. fa. has been sued, served, and judgments collected in Richmond County, Georgia, when the address given as domicile of the defendant in fi. fa. was 2330 Ada Ramp Walton Road.
The judge hearing the case without the intervention of a jury rendered judgment for the plaintiff in fi. fa. and against the claimant. It is to this judgment that the claimant excepted as being contrary to law, contrary to the evidence, and without evidence to support it.
1. The levy of the sheriff did not show that the Caterpillar D-7 tractor was in the possession of the defendant in fi. fa. at the time of the levy; therefore ordinarily the burden of proof would have been on the plaintiff in fi. fa. Code § 39-904. In the present case the claimant assumed the burden of proof by first introducing evidence. See in this connection, Home Finance Co. v. United Motor Sales, 91 Ga. App. 679 ( 86 S.E.2d 659); and cases cited.
2. The contention of the claimant is that the conditional-sale contract dated June 21, 1954, and recorded on November 26, 1954, in the office of the Clerk of the Superior Court of Richmond County, Georgia, rebutted the prima facie case by showing that the conditional-sale contract was recorded within six months after the personalty was brought into the State of Georgia. Code § 67-108. The contention of the plaintiff in fi. fa. is that the claimant did not carry his burden of proof.
As shown in the foregoing statement of facts the conditional-sale contract dated June 21, 1954, and relied on by the claimant, was captioned, "Aiken, 6-21-54, Aiken County, south Carolina." This contract was between the claimant and the Aiken Paving Company and was signed for the purchaser by W. M. Dabney. It was witnessed by two witnesses, each of whom had the following inscription following his name. "Notary Public Richmond County, Georgia. My commission expires May 24, 1958." On the reverse side of this contract was an affirmation by one of the witnesses that he had seen W. M. Dabney sign the contract and that the other witness and himself had witnessed the execution of the contract. This affirmation was captioned, "State of Georgia, County of Richmond." The notary public's signature was followed by the inscription, "Notary Public, Richmond County, Ga. My commission expires 6-8-58." No other information was shown on the conditional-sale contract as to the place where the contract was executed, nor was any evidence adduced on the trial of the case to show where the contract was executed. Therefore, it must be presumed that the contract was executed in Richmond County, Georgia, rather than in Aiken County, South Carolina. Code § 29-407 as amended by the Act of 1951 (Ga. L. 1951, pp. 29, 30) (Code, Ann., § 29-407). See also Smith v. Simmons, 35 Ga. App. 427 ( 133 S.E. 312).
Code § 67-108, supra, relied on by the claimant provides in part that mortgages on personalty shall be recorded "in the county where the mortgagor resided at the time of its execution, if a resident of this State, and if a nonresident, in the county where the mortgaged property is. If a mortgage shall be executed on personalty not within the limits of this State, and such property shall afterwards be brought within the State, the mortgage shall be recorded according to the above rules within six months after such property is so brought in."
The mere fact that the purchaser may have resided in South Carolina does not give rise to a presumption that the property covered by the conditional-sale contract (presumed by law to have been executed in Georgia) was not within the State of Georgia at the time that the contract was executed and at all times since the contract was executed.
From what has been said above it necessarily follows that the evidence presented by the claimant did not rebut the prima facie case admitted by it. Therefore the trial judge, hearing the case without the intervention of a jury, did not err in rendering judgment for the plaintiff in fi. fa. and against the claimant.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.