Opinion
39291.
DECIDED FEBRUARY 20, 1962.
Money rule; intervention-claim, etc. Laurens Superior Court. Before Judge Ward.
Nelson Nelson, Carl K. Nelson, Jr., for plaintiff in error.
Wm. Malcom Towson, A. Mims Wilkinson, Jr., contra.
1. In a money rule proceeding against a sheriff, an allegation by one attempting to assert a mechanic's lien that he had possession of the automobile when it was levied upon by the sheriff, is irrelevant, since possession by the mechanic at the time of the levy under a foreclosure of a conditional sale contract would not invalidate the levy.
2. After the foreclosure by the vendor of a title-retention contract an intervenor in the trial of a money rule against the sheriff is estopped to challenge the validity of the foreclosure proceedings by which the funds were brought into court. An intervenor cannot claim the proceeds of such a sale and at the same time attack the validity of the sale.
3. The denial of a jury trial on a money rule case involving only questions of law was not error.
DECIDED FEBRUARY 20, 1962.
General Motors Acceptance Corporation filed a money rule against W. R. Bussell, Sheriff of Laurens County, Georgia, on August 17, 1961, alleging that on August 16, 1961, said officer collected the net sum of $600.31, after deduction of court costs, from the sale of an automobile in connection with the foreclosure of a conditional sales contract filed on October 6, 1960, by the said Corporation in Laurens Superior Court, but that said Sheriff refused to pay plaintiff or its attorney the said sum even though proper demand was made. Linton Dixon, plaintiff in error, filed his intervention in said money rule proceeding alleging that he is a mechanic engaged in the repair of automobiles and that on or about July 5, 1961, Harry F. Childers, the owner of the aforesaid automobile, contracted with the intervenor to repair the automobile and after the repair work was completed Childers was unable to pay the repair bill amounting to $686.56 for parts and labor. The intervenor asserted his mechanic's lien by retaining possession of said automobile and had possession thereof on or about July 28, 1961, when it was levied upon by the aforesaid Sheriff under the purported chattel mortgage foreclosure by G. M. A. C. On July 31, 1961, the intervenor foreclosed his mechanic's lien in the manner provided by law, had execution duly issued thereon and placed said execution in the hands of the said sheriff, thereby claiming the proceeds of the sale of said automobile under his mechanic's lien. On the hearing in the money rule proceeding, the court ordered certain portions of the intervenor's claim struck and entered an order making the rule absolute against the said sheriff, ordering him to pay the plaintiff, G. M. A. C., the sum of $600.31. The plaintiff in error Dixon assigned error on the court's order striking certain portions of his claim and to the judgment making the rule absolute.
1. The plaintiff in error's first assignment of error is to the striking of his allegation of possession of the automobile in question at the time it was levied on by the sheriff. Although the retention of the automobile was the proper method of asserting the mechanic's lien under Code Ann. § 67-2003, the allegation of possession was irrelevant here because a mechanic's lien for repair work and material on the credit of a vendee is inferior to the vendor's contract retaining the title, regardless of who has possession of the automobile at the time of the levy. Baughman Automobile Co. v. Emanuel, 137 Ga. 354 ( 73 S.E. 511). This is true whether the conditional sale contract is recorded ( Norman v. Farmers State Bank, 90 Ga. App. 763, 84 S.E.2d 207), or unrecorded ( Associates Discount Corp. v. Willard, 99 Ga. App. 116 (2), 108 S.E.2d 110). The mechanic's remedy, as provided by Code § 39-201, is to pay the vendor the balance of the purchase price of the property due by the vendee, then subject the property to a mechanic's lien for labor and material furnished, as the vendee's property. Baughman Automobile Co. v. Emanuel, supra, at p. 354 (a).
2. The plaintiff in error seeks to challenge the validity of the chattel mortgage foreclosure of G. M. A. C. under which the sheriff levied on the automobile. An intervenor takes the case as he finds it. Love v. Goodson, 150 Ga. 46(1) (102 S.E. 429). The foreclosure here is governed by the law which applies to chattel mortgage foreclosures. Code § 67-1601. In Emerson v. Knight, 130 Ga. 100 (2) ( 60 S.E. 255), it was stated: "The mortgage having been foreclosed and a fi. fa. issued upon the judgment of foreclosure, neither the judgment of foreclosure nor the fi. fa. was void because of mere irregularities in the foreclosure proceedings, nor because of defects therein which could have been amended had they been attacked by a timely special demurrer." This court has held that after the foreclosure by the vendor of a title-retention contract, the holder of a pre-existing judgment fi. fa., asserting priority, as against the vendor, to money brought in on the foreclosure and sale of the property, is estopped on the trial of a money rule brought against a sheriff by the vendor to assert the invalidity of or irregularity in the foreclosure proceedings. "This is true because to assert a claim to the funds in the hands of the sheriff and at the same time to attack the validity of the proceedings by which the funds were brought into court is inconsistent. . . The funds being in the hands of the sheriff, and there appearing to have been no objection by the vendee as to the regularity of the proceedings, it was immaterial, insofar as a third party claimant thereto was concerned, how the sheriff acquired them." Palmer Tire Co. v. Maxwell c. Co., 99 Ga. App. 87(1) (107 S.E.2d 695), and cases cited. The plaintiff in error cites several cases which hold that a claimant can attack a fi. fa. upon any ground that could then be urged by the defendant-in-fi. fa. See Oliver v. Parramore, 66 Ga. App. 584, 585 (4) ( 18 S.E.2d 562); Potts v. Reconstruction Finance Corp., 76 Ga. App. 796 (5) ( 47 S.E.2d 178); Romar Acceptance Corp. v. Parham, 213 Ga. 223 (1) ( 98 S.E.2d 615). Upon examination of these cases, it appears that "claimant" refers to one who is actually claiming the property being levied upon, whereas in the instant case the plaintiff in error is merely claiming the proceeds of the sale and is therefore not a "claimant" within the meaning of the cases cited.
3. The plaintiff in error's final assignment of error is to the denial of a jury trial on his intervention-claim by the court. This being a money rule case, which involved only questions of law, the judge had the power to dispose of the case without submitting it to the jury or causing them to render a verdict. Durden v. Belt, 61 Ga. 545; Bryan v. Madison Supply Co., 135 Ga. 171, 172 (5) ( 68 S.E. 1106). Since all of the plaintiff in error's exceptions are without merit, the court did not err in its judgment making the rule absolute.
Judgments affirmed. Bell and Hall, JJ., concur.