Bird v. Harris

• Decision Date: 30 September 1879
• Parties: Bird, administratrix. v. Harris, executor.
• Court: Georgia Supreme Court

63 Ga. 434

Bird, administratrix. v. Harris, executor.

Supreme Court of the State of Georgia

(September Term, 1879.)

[Warner, Chief Justice, being engaged in presiding over the senate organized as a court of impeachment, did not sit in this case.]

Practice in the Supreme Court. Parties. September Term, 1879.

Reported in the opinion.

E. C. BOWER, for plaintiff in error.

J. C. Rutherford, for defendant.

Bleckley, Justice.

Harris, as executor of Harris, petitioned for a rule against Williams, the sheriff, requiring the latter to show cause why he should not pay over certain money which remained in his hands after satisfying the execution under which it was raised, and other executions against the executor, the money being the proceeds of the testator's property which the sheriff had exposed to sale. A rule nisi was granted. The sheriff answered, admitting the possession of the amount of money which the movant claimed, and alleging as the *only reason for not paying it over, that he had been notified by Bird, administratrix of Bird, to hold it up for payment to said administratrix upon a judgment in her favor against the executor, Harris, individually. The said administratrix came in, and, upon her petition, was made a party to the rule; after which the court, adjudicating upon the rule nisi, ordered the sheriff to pay the money to Harris, the executor. The administratrix excepted to this order, but neither joined with herself the sheriff as a party plaintiff in the writ of error, nor served him with the bill of exceptions as aparty defendant thereto. The executor, Harris, was served, and when the case was called here, his, counsel moved to dismiss the writ of error. The motion must prevail. The sheriff is the party against whom the judgment below was rendered. The order requiring him to pay over the money was virtually a rule absolute, and he is now subject, at the option of the movant, to an execution against his property or an attachment against his person. Code, § 3956. The sheriff\'s relation to the court and to the public is different from that of a receiver, and consequently the case in 45 Ga, 167, is not in point. A receiver is a bare custodian; he holds for the court, and his possession is that of the court itself. 11 Ga, 413. The sheriff, on the contrary, is a general officer, answerable for his conduct to all the world. Whoever pleases to sue or to rule him may do so, and he must defend himself as best he can. He requires no leave of court to...