McCall v. Lewis

Beck, J.

At the trial of this ease in the court below, the same being the trial of an issue arising upon the interposition of a claim by Lewis to the levy of a fi. fa. in favor of Bentley, administrator, for use, against Walker, defendant in fi. fa., McCall filed a petition setting up that he was the purchaser and owner of said fi. fa., and praying to be made a party plaintiff in said case; whereupon an order was granted making McCall a party plaintiff. Twenty minutes later the claimant’s attorney moved to dismiss the levy, on the ground that issue had not been tendered within five minutes after the announcement of ready by both sides. The court sustained the motion and dismissed the levy. It appears that within five minutes after the announcement of ready, McCall wrote upon the back of his said petition, in which he had prayed to be made a party to the case, the following traverse of claimant’s affidavit: “And now comes the plaintiff and joins issue, and says that the property is subject to said fi. fa.” No traverse appears on the claim papers, and the plaintiff did not call the attention of the court nor that of claimant’s attorney to the foregoing traverse until twenty minutes after the announcement of ready by both sides, and it does not appear that the attorney for claimant had done anything that could be construed as a waiver of the tender of issue being made at the proper time and in the regular manner. Meld, that the writing of said traverse upon the back of said petition, no attention having been called thereto, was not a sub *614 stantial compliance with Ciyil Code, §5646, and the court did not err in dismissing the levy, in the exercise of a sound discretion.

Submitted October 14, Decided November 18, 1907. Claim. Before Judge Mitchell. Brooks superior court. May 8, 1907. W. C. McCall and J. D. Wade Jr., for plaintiff. Stanley S. Bennei, contra.

Judgment affirmed.

All the Justices concur.