Gholston v. O'Kelley

• Decision Date: 11 July 1888
• Parties: GHOLSTON v. O'KELLEY et al.
• Court: Georgia Supreme Court

7 S.E. 107

81 Ga. 19

GHOLSTON v. O'KELLEY et al.

Supreme Court of Georgia

July 11, 1888

Error from superior court, Madison county; LUMPKIN, Judge.

Bill by O'Kelley, administrator, against Gholston, administrator to marshal assets. Defendant appeals from an order refusing a new trial. Code Ga. § 2914, is as follows: "No judgment hereafter obtained in the courts of this state shall be enforced after the expiration of seven years from the time of its rendition, when no execution has been issued upon it, or when execution has been issued, and seven years have expired from the time of the last entry upon the execution, made by an officer authorized to execute and return the same, such judgments may be revived by scire facias, or be sued on within three years from the time they become dormant."

John J Strickland, for plaintiff in error.

Alex. S. Erwin, by Harrison & Peeples, for defendants in error.

SIMMONS J.

O'Kelley as administrator of H. P. Smith, filed a bill to marshal the assets of the estate of his intestate. The only creditors who appeared to have answered the bill were M. B. L. Gholston, as the administrator of W. J. Gholston, and S. T. and M. L Smith. The contest on the trial below was between Gholston, administrator, who had certain justice's court fi. fas. against the intestate, and the Smiths, who had a claim against the intestate for certain services rendered him for four years prior to his death. Gholston claimed that his fi. fas. were not dormant, and that he had placed them in the hands of the sheriff to claim the money, which was in the sheriff's hands, raised from the property of Smith before the latter's death, and that older fi. fas. were first paid out of the money, and the balance was paid on these fi. fas. in costs, and $26 was receipted for by Gholston on one of the fi. fas. On the trial of the case the court rejected the justice's court executions offered by Gholston, on the ground that they were dormant. A decree was had for Smith. Gholston moved for a new trial, which was refused by the court, and he excepted.

The only question it is necessary for us to decide in this case is whether these justice's court fi. fas. of Gholston were dormant or not; and that depends upon whether a receipt by a justice of the peace for his costs, entered upon the fi. fas. by the justice of the peace, and the placing of them in the hands of the sheriff to claim money in his hands, is sufficient to keep them alive. Each one of the fi. fas. had the following entry thereon: "Received of J. A. Williford, sheriff, the costs in this case, November 4, 1873. OLIVER TRELKELD, Notary Public." Is that entry sufficient, taken in connection with the placing them in the hands of the sheriff to claim money, to prevent dormancy? The court below held that the entry was not made by such an officer as would prevent the execution from becoming dormant; in other words, that, not being made by the sheriff or constable, it amounted to no entry under section 2914 of the Code, the magistrate not being an officer authorized to execute and return the same.

1. We think the court was wrong in its ruling, for two reasons. This section of the Code has received an equitable construction by the courts ever since the passage of the act for which it was codified, in 1822, commencing with the convention of judges, as reported in Dudley's Reports. As far as we can find, every time this section has been before the courts, when it was necessary to rule upon it, they have invariably held that it must receive an equitable construction. It has been held that the act was passed for the benefit of innocent purchasers and bona fide creditors, and it has also been held that any public act of the plaintiff going to show that the execution was still in life would be sufficient to prevent its becoming dormant. In Wiley v. Kelsey, 3 Ga. 274, it was held that if an execution is not barred at the time it comes into court to claim money, the statute cannot subsequently attach, pending the litigation touching the distribution of the fund. In Worthy v. Lowry, 19 Ga. 517, it was held that the issuing of a ca. sa was sufficient to prevent a judgment from becoming dormant. In Ector v. Ector, 25 Ga. 274, it was held that where the court ordered the sheriff to pay money on a fi. fa., and it was receipted for by the attorneys of the plaintiff, that was sufficient to prevent the fi. fa. from being dormant; and Judge LUMPKIN, in commenting on the facts in this case, remarks: "Is not the publicity of this transaction quite equal to a return of nulla bona, or a receipt of five dollars upon the execution of the sheriff or constable? Does it not demonstrate in point of fact that the creditor is actively endeavoring to collect his money?" In Clark v. Feagan, 42 Ga. 269, it was held that a receipt by the sheriff upon the fi. fa., stating that he has received the costs thereon, is such a return or entry as will prevent the dormancy of the judgment. And in the case of Thrasher v. Foster, 42 Ga. 212, it was held that the payment of the costs by the plaintiff, and a receipt by the sheriff on the fi. fa., was sufficient to prevent the dormancy of the judgment. And it was also held, in the same case, that the petition by the plaintiff in fi. fa. for the issuing of an alias fi. fa. and the proceedings had thereon, were evidence of the intent of such plaintiff of his...