Hixon v. Callaway
| Decision Date | 22 October 1907 |
| Docket Number | 501. |
| Citation | 58 S.E. 1120,2 Ga.App. 678 |
| Parties | HIXON v. CALLAWAY, Sheriff. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Rules against officers of court for breaches of duty are not within the purview of statutes regulating defaults under ordinary procedure by petition and process. The court, in its discretion, may allow the officer to make answer at any time before the rule is made absolute.
[Ed Note.-For cases in point, see Cent. Dig. vol. 43, Sheriffs and Constables, § 288.]
Whenever an execution is placed in the hands of a levying officer with direction to levy the same (the defendant being in possession of property), and he fails to make the money within the time prescribed by law, the law presumes injury to the plaintiff in fi. fa. The officer may successfully defend against a rule brought by showing that despite the defendant's possession of the property there was outstanding in a third person a title thereto superior to the plaintiff's judgment.
[Ed Note.-For cases in point, see Cent. Dig. vol. 43, Sheriffs and Constables, §§ 267-271, 290.]
The lien of a judgment duly recorded on the general execution docket is, after the maturity of a growing crop of the defendant in fi. fa., superior to the title thereto obtained through a bill of sale, to secure a debt executed by the defendant in fi. fa. to a third person after the judgment is recorded, but before the crop is mature.
(a) The act of December 21, 1899 (Laws 1899, p. 78), providing that mortgages given to secure supplies necessary to make a crop shall be superior to older judgments, does not include within its purview bills of sale given to secure such supplies.
(b) It appearing in this case that the defendant in fi. fa. was in possession of a mature crop sufficient in amount to pay off the judgment of the plaintiff in fi. fa., and that this fi fa. was placed in the hands of the sheriff with directions to levy, and, the excuse of the sheriff for not levying being the existence of a bill of sale to secure a debt executed by the defendant to a third person subsequently to the recording of the plaintiff's fi. fa. on the general execution docket, the court erred in not making the rule against the sheriff absolute.
Error from City Court of Washington; S. H. Hardeman, Judge.
Rule by J. W. Hixon against J. W. Callaway, as sheriff, to compel the latter to show cause why he did not levy a fi. fa. on certain property pointed out to him by plaintiff as the property of the execution debtor. From a judgment discharging the rule plaintiff brings error. Reversed.
W. A. Slaton and J. W. Hixon, for plaintiff in error.
F.
H. Colley and Wm. Wynne, for defendant in error.
The plaintiff in error, Hixon, had a judgment against Henry Tunnell dated April 15, 1906, on which execution was issued April 19, 1906, and recorded on general execution docket May 7, 1906. In the fall of 1906 he placed the execution in the hands of the defendant in error, Callaway, then sheriff of Wilkes county for levy. He pointed out certain mules and a crop in the possession of the defendant in fi. fa. to be levied on. The sheriff failed to levy, and at the January term, 1907, Hixon brought petition for rule against him. The judge issued the rule requiring the sheriff to answer instanter; and this was served upon the sheriff. The sheriff did not answer until April term of the court; but no rule absolute was taken. At the April term of the court the sheriff answered substantially that he had not levied because the defendant in fi. fa. had no property subject to levy. The plaintiff moved to strike the answer because it was not filed at the first term. The court overruled the motion, and this ruling is the basis of an exception in the record. The plaintiff traversed the answer and evidence was introduced. There was undisputed evidence that the mules were not subject, and the plaintiff abandoned any claim as to these. As to the crop, it appeared that the defendant in fi. fa., as a tenant of one Carlton, made crops in the year 1906 of greater value than the plaintiff's fi. fa. On May 19, 1906, to secure the necessary supplies in the sum of $250, he executed to the Tyrone Mercantile Company a bill of sale to the growing crop. This bill of sale was recorded May 30, 1906. On account of this bill of sale the sheriff declined to levy. The court upon the hearing discharged the rule, and the plaintiff in fi. fa. brings error.
1. As to the exception that the court erred in not striking the answer of the sheriff because it was not filed at the first term, we hold that the court did not abuse its discretion. Rules against officers are sui generis, and are governed more largely by the discretion of the court in each particular case than by the technical rules of ordinary procedure. In an ordinary action begun by petition and process the judge would not have had the power to allow the belated answer filed. Beacham v. Kea, 118 Ga. 406, 45 S.E. 398; Dodson Printers' Supply Co. v. Harris, 114 Ga. 966, 41 S.E. 54. But rules against officers are not within the purview of these statutes regulating defaults. Holcombe v. Dupree, 50 Ga. 336; Wakefield v. Moore, 65 Ga. 268. While the court might have made the rule absolute at the first term for failure of an answer, yet, not having done so, he had the right to allow the answer to be filed subsequently. See Brantley Co. v. Southerland, 1 Ga.App. 806, 57 S.E. 960.
2. "Whenever an execution is placed in the hands of an officer for collection, and he fails or neglects to collect it in the time prescribed by law, the law presumes that the plaintiff was injured; and, upon a rule against the officer to show cause why he should not be attached for contempt, the burden is upon him to show that the plaintiff was not injured." Reeves v. Parish, 80 Ga. 222, 4 S.E. 768. The plaintiff makes a prima facie case for the full amount of his judgment by showing that a valid execution was placed in the hands of the sheriff for levy, and that the defendant in fi. fa. was in possession of sufficient property to satisfy it. The sheriff may successfully defend by showing that, despite the defendant's possession of the property, there was a title thereto paramount to the plaintiff's judgment outstanding in a third person. Brannon v. Barnes, 111 Ga. 850, 36 S.E. 689; Wilkin v. American Freehold Land Mortg. Co., 106 Ga. 182, 32 S.E. 135. The measure of liability is the actual injury sustained by the plaintiff in fi. fa.
3. This brings us to the question whether the bill of sale of the Tyrone Mercantile Company was superior to the plaintiff's judgment. In point of time both of actual creation and of record the judgment was superior. Ordinarily this would make a case where the outstanding title would not be paramount to the plaintiff's judgment, and would therefore not afford a defense to the sheriff upon the rule. However, two reasons are set up why this rule does not apply. The first is based upon the act of December 21, 1899 (Laws Ga. 1899, p. 78) which provides that "the lien of mortgages on crops, which mortgages are given to secure the payment of debts for money, supplies and other articles of necessity, including live stock, to aid in making and gathering such crops, shall be superior to judgments of older date than such mortgages." Since the Tyrone Mercantile Company did not take a mortgage, which is a mere lien, but a bill of sale, which passes title, the statute is not applicable. As Justice Lamar, in the case of Franklin v. Callaway,...
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