Cornelia Bank v. Taylor , 37 Ga. App. 538 ( 1927 )

Bell, J.

1. In the trial of a claim case, the fact that the claimant ad-, mitted a prima facie case in favor of the plaintiff in fi. fa. and assumed the burden of proof would not prevent the direction of a verdict in favor of the claimant where, under all the evidence, the prima facie case thus admitted was conclusively rebutted.

2. The circumstance that the automobile,, which was the subject of the levy and claim, had been registered in the office of the secretary of State as the property of the defendant in fl. fa., even with the knowledge. of the claimant, was subject to explanation, and, as explained in" this case, did not constitute a badge of fraud. There was no. material conflict in the testimony, and the evidence established, without dispute and as a matter of law, that the automobile had been furnished by the claimant to the defendant in fl. fa. for the use of the latter in traveling for a certain company, of which the defendant in fl. fa. was an employee and of which the claimant was manager, and that the title to the property was never in the defendant in fl. fa., but was in the ' claimant.

3. The provision of section 5776 (4) of the Civil Code (1910), upon the subject of the admissibility of admissions of defendants in fl. fa. in claim eases, has no reference to the competency of a defendant in fl. fa. as a witness in the trial of such a case, and would be no authority for excluding his testimony on objection of the plaintiff in fl. fa. when offered by the claimant. Compare Civil Code (1910), § 5858.

4. The court did not err in the admission of testimony, nor in directing the verdict in favor of the claimant.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur. Hamilton Kimsey, J. C. & H. H. Edwards, for plaintiff. McMillm & Erwin, McElreath & Scott, for defendant.