Opinion
Syllabus by the Court
The correct method of contesting the levy and sale of property, by one not the defendant in fi. fa., who claims title to the property and that it is exempt from seizure by reason of having been homesteaded, is the interposition of a claim to such property, under which procedure it is mandatory that the claimant either give bond or file a pauper's affidavit. Since the defense interposed here by the husband of the defendant in fi. fa., and designated a 'counter-affidavit,' fails to conform to these statutory requirements, the trial court did not err in dismissing this pleading.
On November 7, 1950, davison-Paxon Company obtained a default judgment against Mr. and Mrs. Elijah C. George jointly and severally on an open account. On April 14, 1954, after two nulla bona returns, levy was made on certain pieces of furniture and a washing machine, the entry of levy reciting that the same was 'levied upon as property of and found in possession of wife, Mrs. George.' On April 28, 1954, a paper denominated a 'counter-affidavit' was filed in the Civil Court of Fulton County, the court having jurisdiction of the case, in opposition to the levy. Although this pleading began 'Now comes Mr. and Mrs. Elijah C. George, parties named defendants in fi. fa. and levy,' the pleading was effective as to E. C. George only, since his verification of the same 'for both himself and his wife' was effective only as to himself individually, Hadden v. Larned, 83 Ga. 636, 10 S.E. 278, and was apparently so treated, Mrs. George not being named as a party in the appellate proceedings. A motion to dismiss this pleading was sustained, and this judgment was affirmed on appeal to the Appellate Division of that court. Error is assigned on this latter judgment.
J. C. Bowden, Atlanta, for plaintiff in error.
Emory Schwall, Houston White, David A. Hewett, Atlanta, for defendant in error.
TOWNSEND, Judge.
The defense attempted to be interposed against the levy was to the effect that the defendant E. C. George is the owner of the property levied upon, and that the same constitutes a part of the property set apart to him on April 13, 1954, by order of the Ordinary of Fulton County as homestead property exempt from levy and sale. The oral motion to strike was on the ground that such pleading amounted to a claim by the defendant E. C. George, and that it was ineffective as such in that no claim bond was filed in support thereof. Code, § 39-802 makes mandatory the giving of a bond made payable to the plaintiff in execution in at least double the amount of the value of the property levied upon, conditioned to pay all damages which the plaintiff may sustain if the jury finds that the claim was made for purposes of delay only. Code, § 39-807 provides that a pauper's affidavit may be given where the claimant shall be unable to give the bond and security required. If neither the damage bond provided by Code, § 39-802 nor the pauper's affidavit provided by § 39-807 is filed, a motion to dismiss the claim should be sustained. Hand v. Frank W. Hall Merchandise Co., 91 Ga. 130(2), 16 S.E. 644. The proper interposition of a claim would, of course, have been a correct method of contesting the levy and sale on the ground the property had been previously homesteaded. Brantley v. Stephens, 77 Ga. 467; Crowleys&sCo. v. Freeman, 9 Ga.App. 1(1), 70 S.E. 349. The defendant has cited no rule of law, and we know of none, under which he would be entitled to stay a levy upon property levied upon as belonging to his wife, by virtue of a judgment against her, on the ground that the property was owned and had been homesteaded by him, in a proceeding at law where he does not comply with the statutory requirements.
Accordingly, the Appellate Division of the Civil Court of Fulton County did not err in dismissing the defensive pleading on motion of the plaintiff in execution.
Judgment affirmed.
GARDNER, P. J., and CARLISLE, J., concur.