Crawford County Bank v. Britt-Hightower Co.

Wade, J.

1. Erom the judgment of a magistrate on a rule to require a constable to show cause at a regular term of a justice’s court why he should not pay over to a lien creditor funds in his hands, arising from' the sale of personal property under and by virtue of a mortgage execution, when another creditor intervenes and claims the fund by virtue of a lien alleged to be superior-, an appeal to a jury in the superior court will lie, where the amount involved exceeds $50, regardless of whether the questions for determination be of law or fact, except in eases where the effect of the magistrate’s ruling is to dismiss the case and thus leave no case for appeal. Toole v. Edmondson, 104 Ga. 776, 784 (C) ( 31 S. E. 25 ); Civil Code, §§ 5346, 5348. See also Civil Code, § 4998.

2. The judge of the superior court did not err in striking the intervention filed by one claiming the fund in the hands of the officer by virtue of a mortgage covering the same property, and of older date, executed by a person other tnan the defendant. Section 3274 of the Civil Code applies only where both the contesting mortgages’ are given by the same person on the same property. Pasley v. Beland, 111 Ga. 828 . One claiming property under levy can not defeat the plaintiff in execution by set-, ting up outstanding title in a third person; and it is equally-true that one claiming funds by intervention in a rule to distribute money, derived from the sale of property under execution, can not support such a claim by showing that title to the property was vested in some person other than the defendant in execution. See Parker v. Mathews, 106 Ga. 51 ( 3 S. E. 784 ); Robinson v. Schly, 6 Ga. 516 ; Stirks v. Johnson, 99 Ga. 298 ( 25 S. E. 648 ); Oatts v. Wilkins, 110 Ga. 319 ( 35 S. E. 345 ); Burt v. Rubley, 113 Ga. 1144 ( 39 S. E. 409 ).

Judgment affirmed.

Rtissell, G. J., absent.