Opinion
15064.
FEBRUARY 9, 1945. REHEARING DENIED MARCH 7, 1945.
Levy and claim. Before Judge Davis. DeKalb superior court. September 8, 1944.
N. T. Anderson Jr., for plaintiff.
H. O. Hubert Jr., and Scott Candler, for defendants.
Where the presiding judge, on the trial of a claim case involving title to land, dismissed the levy, and where the admitted evidence, together with other evidence the exclusion of which was complained of in a motion to reinstate, while tending to show that the defendant in execution had been in prior permissive possession, failed to show any title or possession under claim of title in him, and showed further that the claimant's title arose in virtue of a deed from a third person, the discretion of the judge in refusing to reinstate the case will not be disturbed.
No. 15064. FEBRUARY 9, 1945. REHEARING DENIED MARCH 7, 1945.
An execution in favor of Lonnie Nelms against Walter O. Venable, issued from DeKalb superior court, based on a judgment of the Department of Industrial Relations, was levied on described land as the property of Walter O. Venable. Blanche Beverly Venable, the daughter of the defendant in execution, interposed a claim, setting forth that the land was not the property of the defendant in execution, but that affiant has a half undivided interest, Mrs. Robert Venable Roper a fourth interest, Arthur Kellogg an eighth interest, and Sarah Harden an eighth interest therein. On the trial, the entry of levy on the execution not showing that the property was in the possession of the defendant in execution, the court ordered the plaintiff in execution to assume the burden of proof. He introduced evidence substantially as follows: J. T. Garner testified that he came to Stone Mountain in 1916, was elected city clerk in 1943, and could not remember when the defendant in execution was not in possession of the property. By use of the word "possession," he meant that the defendant in execution lived in the house with his wife and daughter. He did not pay the witness any taxes on the property. There was no positive evidence showing who paid the taxes. Blanche Beverly Venable, called for cross-examination, testified that she was twenty-six years old, was born in the house in question on January 3, 1918, and did not know how long her family had been living there when she was born. The basis of her claim of ownership was a deed executed September 3, 1921, by Elizabeth Venable Mason, conveying the land to the claimant when she was three years old. Her father did not own the property prior to that time. In response to the question, "You ask me if my father has been allowed to stay in possession of it and exert possession of it freely in every way?" She answered, "Yes, I imagine so. . . We have been living there." The claimant made no return of the property and paid no taxes. She did not know whether her father paid the taxes in her name. Lonnie Nelms, the plaintiff in execution, testified that the defendant in execution was living in the house, and no other family was living there. Henry Garner testified that in 1916 he sold to the defendant in execution lumber that was used in building the house. The court, on objection, refused to stop the trial and allow the plaintiff in execution to amend the levy by having the sheriff write on the execution that the defendant in execution was in possession when the land was levied upon.
At the conclusion of the evidence offered by the plaintiff in execution, the court, on motion of the claimant, dismissed the levy, and ordered that the dismissal be treated as a nonsuit. The plaintiff in execution made a motion to reinstate the case upon the grounds: (1) the order dismissing the levy was contrary to law; (2) the evidence made out a prima facie case and should have been submitted to the jury; (3) the judge erred in disallowing an amendment to the entry of levy on the execution and in excluding evidence showing that the defendant in execution was in possession when the land was levied upon; (4) the court erred in excluding evidence to the effect that, (a) the sheriff inadvertently omitted the statement that the property was in the possession of the defendant in execution when levied upon, (b) the tax records from 1940 through 1944 show the property levied upon to be in the name of the defendant in execution, and (c) testimony of the court stenographer that Mrs. Roper would not allow her depositions to be taken. The exception is to an order overruling the motion to reinstate the case.
"If the plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover, a nonsuit shall be granted." Code, § 110-310. "A motion to reinstate a case will lie, as one remedy, where a nonsuit has been awarded for want of sufficient evidence." City of Atlanta v. Jenkins, 137 Ga. 454 ( 73 S.E. 402); Glenn v. Glenn, 152 Ga. 793 ( 111 S.E. 378). "It is no ground to reverse a judgment of nonsuit that the court excluded evidence which, even if admissible, would not have materially changed the scope and effect of the evidence which was admitted. Stewart v. Savannah Electric Co., 133 Ga. 10 (2) ( 65 S.E. 110, 17 Ann. Cas. 1085). Whether a motion to reinstate a case where a nonsuit was entered will be granted, is a matter within the legal discretion of the trial judge. Southern Railway Co. v. James, 114 Ga. 198 ( 39 S.E. 849). While these authorities dealt with nonsuit, the principles therein ruled are applicable to the grant of a motion to dismiss the levy in a claim case, where the evidence as a whole fails to show that the property was subject.
In the instant case, while Henry Garner testified that in 1916, five years before the execution of the deed under which the claimant derived title, he sold to the defendant in execution lumber which was used in building the house, other evidence introduced by the plaintiff shows that the claimant's title did not come out of the defendant in execution, but that it arose in virtue of the above deed from Mrs. Mason, the great-aunt of the claimant. There was no evidence tending to show that title to the house and lot had ever been in the defendant in execution, or that he had ever claimed any title to the land. While prior possession alone may cause a presumption of title to arise (Code, § 33-102), such presumption was overcome when other evidence as to ownership of the property, introduced by the plaintiff, showed that the claimant had a deed from her great-aunt to a half undivided interest in the property, and that the defendant in execution had never had title, nor claimed to be the owner of any interest therein.
The evidence, the exclusion of which is complained of in the motion to reinstate, was to the effect: (a) The sheriff inadvertently omitted the statement that the property was in the possession of the defendant in execution when levied upon; (b) the tax records from 1940 through 1944 show the property levied upon to be in the name of the defendant in execution; (c) testimony of the court stenographer that Mrs. Roper would not allow her depositions to be taken. Under the above authorities, the admitted evidence was not sufficient to avoid a dismissal of the levy, for the reason that the evidence as a whole was not sufficient to show title in the defendant in execution. What the judge really did was to dismiss the levy. The rejected evidence, while tending to show possession in the defendant in execution and that the tax records from 1940 through 1944 listed the property in his name, did not show any title or possession under claim of title in him, and consequently was not such as materially to change the probative value of the evidence on which the trial judge dismissed the levy, and his discretion in refusing to reinstate the case will not be disturbed.
The case has been disposed of on the merits, and thus it becomes unnecessary to go into the question, not raised by any of the parties, to wit, whether in any event prior rulings on the sufficiency of the pleadings or the admissibility of evidence may be assigned as error in a motion to reinstate, or whether the grounds of the motion should be limited to evidence that was before the court at the time the nonsuit was granted.
Judgment affirmed. All the Justices concur, except Wyatt, J., absent because of illness.