The judge of the superior court, in the exercise of his legal, as distinguished from his equity powers, erred in ordering personal property to be sold after ten days advertisement, when it was not shown that the property was of a perishable nature, or liable to deteriorate from keeping, or that there was expense attending the keeping of the same. Code, §§ 39-1203, 39-1204.
DECIDED APRIL 18, 1940. Where personal property is levied on under a purchase-money attachment, the superior court of the county in which the attachment is foreclosed is without authority to order the property sold after advertisement for ten days in three public places in the county, in the exercise of its legal, as distinguished from its equity powers, in response to a petition by the plaintiff in attachment alleging that another person was in possession of and operating the property levied on (sawmill), that the property was uninsured and exposed to fire hazard, and that there would be an expense attending the keeping of it. Citation of authority is unnecessary in view of the admission in the brief of counsel for defendant in error as follows: "The defendant in error does not claim that the property is of a perishable nature or that it could be sold under the statutory rules governing an application for short order," the reason being that the evidence did not authorize such a sale. The transfer of this case to this court by the Supreme Court (Smith v.Beavers, 189 Ga. 209, 5 S.E.2d 640), is conclusive of the proposition that the order for the sale was not an exercise of an equity power of the court. The court erred in ordering the sale of the property.
Judgment reversed. Stephens, P. J., and Sutton, J., concur.