Berrie v. Smith

• Decision Date: 21 February 1896
• Citation: 25 S.E. 757,97 Ga. 782
• Parties: BERRIE, Sheriff, v. SMITH.
• Court: Georgia Supreme Court

25 S.E. 757

97 Ga. 782

BERRIE, Sheriff, v. SMITH.

Supreme Court of Georgia

February 21, 1896

Syllabus by the Court.

1. A petition for a rule against a sheriff by one claiming funds in his hands, alleging that a mortgage had been given to secure a principal note and certain notes for interest thereon, maturing at different dates; that the mortgage and all the notes had been transferred to one who subsequently for value, transferred to the petitioner some of these interest notes, and, after so doing, had foreclosed the mortgage for the principal debt only, erroneously alleging in the foreclosure petition that the transferred interest notes had been paid: the petition for the rule further alleging that the mortgage fi. fa. had been levied upon the mortgaged property; that the same had been sold, and bought in by the plaintiff in that fi. fa. for less than its value, and for less than the principal debt; that the mortgagor was insolvent, and petitioner had no other means of collecting his notes; that he had been prevented from being made a party plaintiff to the foreclosure proceeding because of a misunderstanding between himself and the counsel for the plaintiff in the mortgage fi. fa.; that written notice had been given to the sheriff at the mortgage sale to hold up funds sufficient to pay the interest notes belonging to petitioner; and that the sheriff had held up the fund in his hands,--is not without equity.

2. The method of procedure against a sheriff for the distribution of funds in his hands raised by levy and sale, and claimed by several parties, where the applicant asks for equitable relief, does not differ from the form of procedure where he only insists upon his common-law rights, save that in the former case he must allege such facts as entitle him to equitable relief, the difference being one of substance, and not of form.

3. It is not essential, in the first instance, that an applicant for a rule against a sheriff for a fund in his hands should make parties to the proceeding other claimants of this fund. After the granting of the rule, upon proper notice to such other claimants, either by the applicant or by the sheriff they can, if they desire, come in and be made parties; and whether they do so or not, they will be bound by the judgment rendered upon the rule, if they actually participate in the hearing had upon the same.

Error from superior court, Glynn county; J. L. Sweat, Judge.

Petition by Ira E. Smith for a rule against W. H. Berrie, sheriff. The rule was granted, and from a judgment overruling a demurrer to the petition respondent brings error. Affirmed.

Atkinson & Dunwody, for plaintiff in error.

Johnson & Krauss, for defendant in error.

CALLAWAY Special Judge.

Ira E Smith filed his petition for a rule against W. H. Berrie, sheriff, alleging that on the 7th of January, 1889, W. M. Mason executed to J. F. Avery eleven promissory notes, one of which represented the principal debt, and was for $3,500, and matured five years after date. The other 10 represented the interest, and were each for $140. The first of the series fell due six months after date, and the others matured, one at the end of each period of six months, respectively, thereafter, until all had matured. These eleven notes were secured by a mortgage from Mason to Avery upon real estate in the city of Brunswick, valued at the time of the loan at $6,000. Mason paid the first four notes of the $140 series, but failed to pay any of the other notes. All of the notes and the mortgage were transferred in writing, before maturity, by Avery to Henry Clay. Clay transferred four of the unpaid interest notes to E. A. Nelson, who transferred them to Smith, the petitioner, each of these transfers being in writing and for value. Clay had foreclosed his mortgage, reciting in his petition for foreclosure: That the notes held by Smith had been paid. Pending the foreclosure, Smith had applied to Clay's counsel for permission to be made a party plaintiff, and requested that the petition for foreclosure be amended by alleging that the notes held by him had not been paid. Counsel for Clay, without objecting or consenting, requested further time to investigate the matter, but without ever answering Smith, or further notice to him, which he expected from them, obtained a rule absolute, had execution issued thereon, and levied it upon the mortgage property, which was sold and bought by Clay for $3,050. That on the day of sale, and before the sale took place, Smith notified the sheriff, in writing, to hold up a sufficient sum out of the proceeds of the sale to pay the notes held by him. That the sheriff had held up the funds under said notice. And that Mason was insolvent. He prayed for a rule against the sheriff requiring him to show cause why he should not pay out of the funds arising from the sale of said mortgaged property the amount due on said notes. A rule against the sheriff was granted, who, instead of answering through his counsel (who were also counsel for Clay), demurred to the petition,...