Legal Opinion

Mize v. Ells

Supreme Court of Georgia

Decided June 15, 1857No. 5PublishedCited by 2 opinions

Claim in Sumter Superior Court. Decision by Judge Allen, at March Term, 1857. The Sheriff of Sumter connly, by virtue of ay?, fa. issued, at the suit of Henry N. Ells vs. Mize & Dupree, levied on two billiard tables as the property of defendants. Francis M. Mize interposed his claim to the property levied on, and' the case was submitted to a ju cy.

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Claim in Sumter Superior Court. Decision by Judge Allen, at March Term, 1857. The Sheriff of Sumter connly, by virtue of ay?, fa. issued, at the suit of Henry N. Ells vs. Mize & Dupree, levied on two billiard tables as the property of defendants. Francis M. Mize interposed his claim to the property levied on, and' the case was submitted to a ju cy. After the evidence-on both sides was closed, and before the jury retired, claimant proposed to submit to a verdict, which being declined,, he then moved to withdraw h?s claim, which the Court refused to allow. The jury retired aud found the…

1Opinion of the Court

By the Court.

Lumpkin, J.

delivering the opinion.

By the Act of 1821, {Cobb 533,) a party may withdraw his claim once at his own instance, and without the consent *566of the plaintiff in execution. May this privilege be exercised on the first trial, at any time, before the jury have retired to consider of the case? We see nothing in the statute itself, nor in the reason of the law, which restricts the exercise of this right, as was done by the Court in this case.

Our judgment consequently is, that the decision below be reversed.

Judgment reversed.

2Cited by2 opinions

  1. Kennedy v. JuhanSupreme Court of Georgia · 1897
  2. Houser v. BrownSupreme Court of Georgia · 1878

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