Opinion
36866.
DECIDED OCTOBER 30, 1957.
Claim; directed verdict. Before Judge Flournoy. Polk City Court. June 22, 1957.
Marson G. Dunaway, Jr., for plaintiff in error.
Henry A. Stewart, Sr., contra.
The court did not err in directing a verdict for the claimant.
DECIDED OCTOBER 30, 1957.
Community Loan Investment Company sued Johnnie D. Holtzclaw and garnished Cedartown Textiles, Inc., and took a default judgment against the garnishee. Execution issued on the judgment and the execution was levied on a 1950 two-ton Dodge truck and a 12-foot van type body as the property of the named garnishee. Bachmann-Uxbridge Worsted Corporation filed a claim to the property. The plaintiff in execution filed an amendment in aid of the levy in which it was alleged that in 1954 Bachmann-Uxbridge Worsted Corporation purchased the entire assets of Cedartown Textiles, Inc.; that the fact of the transfer was unknown to the plaintiff in execution until after the levy in this case; that after said purchase the claimant continued to conduct the business formerly owned by Cedartown Textiles, Inc., in the same building, by the same personnel and under the same name and style of the former owner and held itself out to the public as doing business under the name and style of Cedartown Textiles, Inc., with the intent to deceive and defraud the public; that the plaintiff relied on the claimant's representations in filing the garnishment proceedings which resulted in the judgment in this case in favor of the plaintiff against Cedartown Textiles, Inc.; that the claimant is estopped to deny the name under which it traded and to deny that the property held in the name and style of Bachmann-Uxbridge Worsted Corporation is subject to the judgment and execution. The court directed a verdict in favor of the claimant, and the plaintiff excepted.
1. In view of the conclusion reached, it is unnecessary to cumber the record with a statement of the evidence in the case. Assuming but not deciding, that, if the facts pleaded in the plaintiff's amendment setting up an estoppel against the claimant to claim the property would have amounted to an estoppel if proved and relied on by the plaintiff, there is not one iota of evidence that the plaintiff in execution relied on any or all of the acts of estoppel pleaded in having the garnishment issued against Cedartown Textiles, Inc. The charter of Cedartown Textiles, Inc., was surrendered before any of the acts involved and the new corporation, the claimant, had taken over the operation of the business.
2. The plaintiff contends that a prima facie case was made by introduction of the execution and levy. The contention is without merit because the levy did not state that the property levied on was found in the possession of the defendant in execution and, if a mere invoice showing that the property was sold to the defendant in fi. fa. in 1950 was sufficient to show title or possession in defendant in fi. fa., the amendment of the plaintiff stating that all of the assets of the defendant in fi. fa. were transferred to the claimant is an admission in judicio that the property levied on belonged to the claimant, which the plaintiff could not disprove while the allegation remained in the amendment.
3. What is said above renders the introduction of the conveyance from the defendant in fi. fa. to the claimant harmless even if it did not include the property levied on.
The court did not err in directing a verdict for the claimant.
Judgment affirmed. Quillian and Nichols, JJ., concur.