Opinion
13981.
MAY 21, 1942. ADHERED TO ON REHEARING, JULY 15, 1942.
Complaint for land. Before Judge Graham. Bleckley superior court. September 6, 1941.
H. F. Lawson and R. H. Lawson, for plaintiff.
H. McWhorter and L. A. Whipple, for defendants.
On application of controlling rulings of law, a finding in favor of the defendant in suit for land was error.
No. 13981. MAY 21, 1942. ADHERED TO ON REHEARING, JULY 15, 1942.
Investors Finance Company was the plaintiff in an ejectment suit against the tenant in possession of a lot of land. The company claimed under a sheriff's deed which was based on a sale after levy of an execution, following the original levy of an attachment on the lot and a special judgment in rem against the lot, besides a general judgment against the defendant in attachment. The defendant in that proceeding filed his intervention in this ejectment suit, in which he claimed ownership of the lot, and attacked the sheriff's sale and deed as void for excessive levy. By agreement the case was heard by the judge without a jury. At the trial the plaintiff company offered amendments in which it asked to be subrogated to the rights of the plaintiff in fi. fa., in the event that the sheriff's deed should be found void. The plaintiff in fi. fa. also offered an intervention, in which he joined the plaintiff purchaser in the present case as to its amendments and prayers, and asked protection of his own rights. On objections by the defendant, the court disallowed the amendments offered by the plaintiff, and the intervention of the plaintiff in fi. fa., and found in favor of the defendant.
The defendant (defendant in fi. fa.) admitted a prima facie case in the plaintiff, and assumed the burden of proof. There was undisputed testimony by the defendant that the land lot levied on was capable of division into quarters, any one of which would have realized the amount of the execution. The defendant introduced in evidence the writ of attachment, showing an original levy on the entire lot; and the record in the attachment case, including the declaration, which prayed for a special judgment against the lot, as well as a general judgment; and including the verdict and judgment. The defendant also introduced the demurrers and answer which he had filed to the declaration in the attachment proceeding. The verdict for the plaintiff included a finding not only against the defendant generally but "against the premises . . levied upon and seized under the attachment, . . and that [the] lien of said attachment on the lands described in the levy on said attachment and in the declaration in attachment dated from" the stated time of levy. The judgment provided that the plaintiff recover, not only against the defendant generally, but "the premises levied upon under the attachment, to wit, [the lot in question as described]; and that "the judgment herein rendered is generally against said [defendant] in personam, and special against said lot of land;" and that "the lien of said attachment on said land shall date from" the stated time of levy of the attachment.
The plaintiff purchaser excepted to the judgment in favor of the defendants, and to the disallowance of its amendments to the petition and the disallowance of intervention by the plaintiff in fi. fa. In its exceptions to the judgment the plaintiff says that the judgment was error, because the defendants in the ejectment suit "admitted a prima facie title to said lands in the plaintiff;" that defendants pleaded "as a defense to the plaintiff's suit the excessive levy of the execution issuing upon the judgment, . . which execution and levy of the same is an essential part of the plaintiff's title to said land;" that "the verdict in said case . . was a special verdict against said lands as well as a general verdict;" that "the judgment in said case" was not only a general judgment, but "a special judgment against said lot of land;" that the "execution issuing upon said judgment . . followed the judgment . . and directed the sheriff . . to make the amount of said execution out of said lot of land;" that "said execution upon said judgment was levied upon said lot of land as the property of the defendant;" and that said lot was levied upon, sold to the plaintiff, and a sheriff's deed was made accordingly.
The plaintiff in error especially urges in its brief that excessiveness of levy was no defense, and there was no excessiveness of levy, since plaintiff in fi. fa. had a special lien against the lot in dispute, and a special judgment in rem against the lot, on which execution was issued and a levy and sale were made accordingly. Defendants in error by brief contend that in an attachment case such as this the defense of excessive levy was permitted, and that the evidence demanded a finding that the levy was excessive.
With reference to the question of excessive levy, the judge certified, in the bill of exceptions, as follows: "When it was suggested that the judge try the case without a jury, counsel for plaintiff stated to the court that there was no issue of fact in the case, that the issue was whether the defendant, J. T. Hill, as owner of the land sued for, had a right to be made a party defendant, and whether the levy in the case was void on account of being excessive; and further stated that if defendant produced evidence showing the levy was excessive, plaintiff would introduce no evidence to the contrary, but the plaintiff did not concede that the levy was excessive. The foregoing statements were made at the time the order submitting said cause to said judge was taken on July 15, 1941. The defendant, J. T. Hill, over objections but without exceptions thereto, was made a party defendant in said cause. Thereafter, under said agreement, said cause came on for trial before said judge, without a jury. Said defendant offered the evidence herein set out, including the testimony of the defendant, J. T. Hill, as to the excessiveness of the levy; and the plaintiff offered the amendments and interventions which were disallowed. No objection was made on the trial of said cause to the admission of the testimony as to the excessive levy. Plaintiff did not contest the same; but through his counsel stated that he did not admit the testimony was sufficient to show excessive levy, and insisted that the evidence did not prove excessive levy. Said cause was tried before said judge on the question as to whether the amendments and interventions should be allowed, and as to whether the evidence was sufficient to show excessive levy. No objection was made, or intimation given, on the trial of said cause that an excessive levy could not be considered because the judgment and execution under which the levy was made was a special judgment. Now since the trial, and for the first time, plaintiff makes the objection and issue that the evidence of excessive levy was insufficient, for the reason that the judgment in the case was a special judgment against the lands in question. After the trial was had, it was suggested that the case be not argued orally by counsel for either party, but that counsel for each party submit briefs, and that the court take the case under advisement until September 6, 1941, and then decide the same, giving each party opportunity to submit a brief; and no oral arguments were made. Counsel for plaintiff submitted a brief in which he stated that the evidence submitted did not show an excessive levy; but did not say therein that the judgment in the case was in rem and therefore the excessiveness of the levy was not a defense. Counsel for defendant also submitted a brief in which he discussed "Excessive Levy Under In Rem Judgments,' and submitted authorities thereof; but the court did not read this brief of counsel for defendant. The court, at the time, read the brief of the plaintiff; and having decided that the levy was excessive, and that the amendments and intervention should not be allowed, saw no necessity for reference to the brief of the defendant; therefore did not examine it."
1. "The lien of an attachment is created by the levy, and not the judgment on the attachment." Code, § 8-905. "The judgment on the attachment shall only bind the property attached, and the judgment shall be entered only against such property," except when the defendant has "given bond and security, or when he has appeared and made defense, . . or when he has been cited to appear" as provided by statute, in which event "the judgment rendered . . shall bind all his property," although the execution "shall be first levied on the property attached." § 8-901. "After the judgment has been obtained in any case of attachment, execution shall issue [and be levied] as in cases at common law, . . and the proceedings in all respects shall be the same, except that when the judgment only binds the property levied on by the attachment, as aforesaid, the execution shall be issued against such property only, and that property only shall be levied on and sold." § 8-903. Accordingly, where in an attachment proceeding the sheriff levied on a described lot of land, and after the filing of a declaration in attachment by the plaintiff and an appearance and filing of defenses by the defendant, the verdict and judgment expressly found in favor of the plaintiff as to the existence of a lien on the lot from the time of levy thereon, and a special judgment in rem against the lot, as well as a general judgment, the plaintiff in attachment had a special lien on such lot dating from the levy.
2. "When a judgment is in rem against a described piece of property, the defense of excessive levy does not lie." Edwards v. Decatur Bank Trust Co., 176 Ga. 194 (3), 198 ( 167 S.E. 292). This rule as to excessive levy, there applied to a special judgment on a security deed, has also been applied to a special judgment on a mortgage ( Howland v. Donehoo, 141 Ga. 687, 691, 693, 82 S.E. 32, L.R.A. 1917B, 513), and has been given effect as to a special judgment and execution based on a materialman's lien, where no pre-existing title or lien was created by express agreement of the parties. Foster v. Cotton States Electric Co., 172 Ga. 231 (4) ( 157 S.E. 636). The rule voiding excessive levies under tax executions is well recognized ( Vickers v. Hawkins, 111 Ga. 119, 120, 36 S.E. 463; Thomas v. Crawford, 175 Ga. 863, 865, 166 S.E. 437, and cit.; Bibb County v. Elkan, 184 Ga. 520, 524, 192 S.E. 7, and cit.); but some doubt has been expressed as to the application of the rule with respect to excessive levies under executions for paving or street improvements. See Wood v. Sommerfield, 185 Ga. 441, 442 ( 195 S.E. 428); Howland v. Donehoo (supra). It will be seen, however, that an execution for street improvements, even though it be issued in rem, is a summary proceeding, and does not afford the defendant in execution an opportunity to appear and attack the excessiveness of the levy by affidavit of illegality, unless so authorized by statute (Code, § 39-1004), whereas in an attachment proceeding, where the levy must be followed by a declaration, the defendant has opportunity to appear and contest the excessiveness of the levy before a judgment is taken, setting up the special lien in accordance with the levy as made. See 7 C. J. S. 408, § 235, b; 6 C. J. §§ 451, 452, and cit. Under the foregoing rule, the levy made in accordance with the judgment of the court, setting up the special lien on the property levied on in attachment, was not excessive in a legal sense.
3. It appears from the order of the trial judge that the proposition of law dealt with in the preceding paragraph was not adjudicated, for the reason that counsel for the party claiming under the attachment levy and sale stated that "there was no issue of fact in the case," and that "the issue was whether the levy in the case was void on account of being excessive," and that no contention of law was then urged to the effect that, the levy being on property upon which a special lien and a judgment in rem had been set up and established, the levy could not for that reason be excessive. While reviewing courts will not consider questions which the record does not show were raised and determined in the trial court ( Hood v. Griffin, 113 Ga. 190, 38 S.E. 409; Trammell v. Woolfolk, 68 Ga. 628 (2); Bates v. Messer, 76 Ga. 696 (1, a); Durden v. Meeks, 110 Ga. 319 (2), 35 S.E. 153; Barham v. Weems, 129 Ga. 704 (3), 59 S.E. 803; Byrd v. Vance, 158 Ga. 787, 790, 124 S.E. 705), in the absence of a waiver all questions will be considered as having been raised and determined in the trial court as judge and jury, which were made by the pleadings and supported by the undisputed evidence, even though the application of some appropriate legal principle might not have been then specifically urged in support of a legal contention. It is "not only within the authority of the [appellate] court, but it is its duty, when a case is before it on a direct writ of error complaining of a judgment, to reverse the judgment when it is apparent from the record that in point of law the action was not maintainable, if the judgment was in favor of plaintiff, or the plea constituted no defense, if the judgment was in favor of the defendant." Kelly v. Strouse, 116 Ga. 872 (5), 887 ( 43 S.E. 280); Horsley v. Woodley, 12 Ga. App. 456 (2), 461 ( 78 S.E. 260). The quoted statement of counsel for the plaintiff in error, that the facts were uncontested, and that the issue was whether the levy was void on account of being excessive, does not amount to a waiver of his right under the law to claim that the levy was not excessive because it was based on a special lien and judgment in rem, as shown by the undisputed facts in the attachment record; and since it is apparent from the record and undisputed evidence that the plea of excessive levy constituted no defense to the plaintiff's claim of title, the judgment in favor of the defendants must be reversed on the specific exception pointing out such error. Especially is this true where, as here, the defendants in ejectment admitted a prima facie title in the plaintiff and assumed the burden of showing that its deed was void; and where, when argued in the trial court only by brief, the defendants themselves in their brief, presumably served on the plaintiff's counsel, "discussed `Excessive Levy Under In Rem Judgments,' and submitted authorities" thereon.
4. The preceding rulings being controlling, it is unnecessary to consider the remaining exceptions, as to the disallowance of the plaintiff's amendments to its petition, seeking subrogation to the plaintiff in fi. fa. if the sheriff's levy and deed, under which the plaintiff claimed, should be held void; or as to the disallowance of the intervention adopting the plaintiff's amendments, and admitting its right to be thus subrogated.
Judgment reversed. All the Justices concur, except Bell and Grice, JJ., who dissent.