Armstrong v. Jones

• Court: Georgia Supreme Court
• Writing for the Court: Lumpkin, C. J
• Citation: Armstrong v. Jones, 34 Ga. 309 (Ga. 1866)
• Decision Date: 30 June 1866
• Parties: James W. Armstrong, plaintiff in error. vs. Wm. B. Jones, Sheriff, defendant in error.

34 Ga. 309

James W. Armstrong, plaintiff in error. vs. Wm. B. Jones, Sheriff, defendant in error.

Supreme Court of the State of Georgia

JUNE TERM, 1866.

Rule against the Sheriff. Macon Superior Court. March Term, 1866. Decided by Judge Cole.

The following facts were agreed upon by the parties: That sundry fi. fas. in favor of James W. Armstrong against George W. Fish, Daniel Kleckley, and others, issuing from Macon Superior Court in 1862 and 1863, were placed in the hands of Win. B. Jones, sheriff of said county, on the 12th day of October 1865, and that he was ordered to raise the money thereon; that at the time of delivering said fi. fas. into the hands of the sheriff, that the plaintiff wrote the sheriff a letter—which it Was admitted he received—pointing out certain property of defendant\'s subject to said executions; that there were at that time two hundred bales of cotton (all in the seed except about twelve bales) in the possession of George W. Fish, defendant in fi. fa., twenty-three bales of which cotton was then at the depot for shipment; and that said Fish has, at sundry times since, sent off from the county various lots of said cotton.

It was also admitted, that — bales of cotton belonging to Daniel Kleckley, defendant in fi. fa., have been sent off from the county, and sold since the said 12th day of October 1865, and that said cotton was at that time in the warehouse of Elbert Lewis, in Ogletherpe City, for shipment.

It was further agreed that no affidavit was made by plaintiff in fi. fa. prior to the delivery of said fi. fa. to the sheriff, and the request to levy, as required by the act of December 20th, 1860; nor has any affidavit been made by the plaintiff since.

Upon the foregoing admission of facts, the court refused the rule absolute against the sheriff: which refusal is excepted to by the plaintiff in fi. fa.; and the same is now assigned as error.

Cobb & Jackson, for plaintiff in error.

Hall, Robinson, Linton Stephens, Brown, and A. H. Stephens, for defendant in error.

Lumpkin, C. J.

No objection was raised by the sheriff at the time, nor is it raised in the argument now, for want of indemnity to make the levy. This point was settled by this Court in Levy vs. Shockley, 29 Ga. Rep., page 710. This Court said, by Mr. Justice Stephens, delivering the opinion, " The fact that the plaintiff in fi. fa. pointed out the property for a levy, was indemnity to the sheriff; for the plaintiff was bound to protect the officer in doing the specific thing which he had ordered him to do. If that indemnity was not sufficient, the sheriff could have objected to it on that ground, and have refused to act until it had been made sufficient. He cannot be heard now with the suggestion of an objection which, if made at the proper time, might have been promptly met and removed. We think the rule was rightly made absolute."

The sheriff, in response to the rule nisi calling upon him to show cause why he had not made the money on the plaintiff's executions, plants himself solely on the fact, that the plaintiff had failed to make an affidavit, in accordance with the 4th section of the Act, passed 20th of December, 1860, (see pamp. Acts of that year page 21-22) entitled " an Act to grant relief to the banks and people of this State, " which section provides, " that the property of the defendant shall not be sold under a fi. fa., nor his person arrested nor imprisoned under a ca sa, unless the plaintiff, his agent, or attorney, shall make affidavit that the defendant is removing, or about to remove, without the limits of this State or any county thereof, or is removing, or is about to remove, his property beyond the limits of this State, or any county thereof."

The foregoing Act was continued substantially in force up to the 9th of March, 1865, when the Legislature enacted, that it " shall remain in force during the continuance of the present war, " (see pamp. Acts passed November, 1864, and February and March, 1865, page 45.)

It is obvious, then, that the justification of the sheriff in requiring a preliminary affidavit to be made by the plaintiff, before he would levy on the defendant\'s property, when it was pointed out by the plaintiff, and the sheriff directed to make the levy, depends upon the single fact, of whether or not the war existed on the 12th of October, 1865.

We hold that the war had terminated before that...