Hollis v. Lamb

• Citation: 114 Ga. 740,40 S.E. 751
• Parties: HOLLIS v. LAMB.
• Decision Date: 07 February 1902
• Court: Supreme Court of Georgia

40 S.E. 751

114 Ga. 740

HOLLIS

v.LAMB.

Supreme Court of Georgia.

Feb. 7, 1902.

DORMANT JUDGMENT—ENTRY ON EXECUTION —LEVY—DEFECTS.

1. Active and bona fide efforts on the part of a plaintiff in fi. fa. to enforce his execution by any appropriate legal proceedings are, if duly taken, sufficient to prevent the dormancy of the judgment on which it issued; and, in order to have this effect, it is not necessary that any entry relating to such efforts, other than those otherwise required or authorized to be made ou the execution, shall be entered either on the execution itself or the execution docket of the court in which the judgment was rendered.

2. Even if the defect in the levy in the present case was not amendable, it was cured by the recital in the claim affidavit. The previous levy on personal property of one of the defendants was properly accounted for by the evidence.

3. The court erred in dismissing the levy. (Syllabus by the Court.)

Error from superior court, Taylor county; W. B. Butt, Judge.

Action by one Hodgkins against the city of Macon and others. Execution was subsequently transferred to E. A. Hollis. On levy of execution, J. C. Lamb interposed a claim. Judgment for claimant. Hollis brings error. Reversed.

Bull & Lawrence, R. S. Foy, and J. H. Martin, for plaintiff in error.

O. M. Colbert and A. P. Parsons, for defendant in error.

LITTLE, J. On the 7th day of June, 1886, Hodgkins, cashier, obtained a judgment in the city court of Macon against Bar-field, Gilmore, Reid, and Garrett for the principal sum of $300, besides interest, costs, etc. On this judgment execution was issued pn the 13th day of November, 1886, which was subsequently transferred to Hollis. Certain entries appear on the execution, as follows: A levy of the same, December 4, 1886, by the sheriff of Taylor county, on certain lands in that county as the property of Garrett; an entry of sale under that levy, and a credit of $8.10, January 4, 1887. The execution also bears the indorsement of an entry on the general execution docket of Taylor county, June 15, 1893, and on the general execution docket of Macon county on June 19, 1893. Also a levy on a certain stock of merchandise, etc., In Macon county, as the property of Gilmore, dated February 17, 1897. The execution was, on the 9th day of May, 1898, levied by the sheriff of Taylor county on certain other lands in that county as the property of Garrett; and to this last levy J. C. Lamb interposed a claim. On the call of the case, and before issue was joined, the claimant made a motion to dismiss the levy on three grounds: First, that the judgment on which the execution was issued was dormant, because more than seven years had elapsed between the last entry thereon and the levy to which the claim was interposed; second, because there appeared on the execution an entry of a levy on personal property, made in Macon county, and it did not appear what disposition had been made of the same; and, third, because the entry of levy to which the claim was interposed failed to show in what county the lands levied upon were located. In resistance to that motion the plaintiff in fi. fa. introduced in evidence a certified copy of a record from the superior court of Macon county, by which it appeared that Sheffield & Co. filed a petition against the sheriff of Macon county, asking for a rule requiring him to pay over to the plaintiffs certain moneys which he had in his hands, and which arose from the sale of lands in Macon county as the property of Reid, one of the defendants in fi. fa. This petition was filed on November 13, 1893. A rule nisi was granted, and the sheriff answered the same on November 21, 1893, admitting the sale of the property of Reid and the collection of the purchase price, and setting out the fact that he had in his hands other fi. fas. claiming the money (among them being the one that was levied in the present case), and asking for the direction of the court as to the disposition of the fund; and a judgment of the court was had directing him to pay over the fund to Marshall, the plaintiff in another fi. fa. In the sheriff's hands. Plaintiff in execution also introduced in evidence certified copies of the record from Macon superior court, showing that Everett Ridley, Ragan Company had filed a claim to

a certain stock of merchandise, etc., in the town of Oglethorpe, Macon county, Ga., upon which the execution in the present case had been levied on February 17, 1897, as above set out; and also a judgment of the court dismissing that levy, dated November 8, 1897. The plaintiff also moved to allow the sheriff to amend his entry of levy in the present case by an entry that the land levied on was In Taylor county. This motion the trial judge refused to allow, and then sustained plaintiff's motion to dismiss the levy on all the grounds taken, and judgment was had accordingly. The plaintiff in fi. fa. excepted to the refusal to allow the sheriff to amend his levy, and to the order of the judge dismissing the same.

It is entirely immaterial, under the facts of the present case, whether the levy showed that the lauds levied on were or were not in Taylor county. The entry of levy w^ras made by "M. L. Riley, sheriff, " and described the lands as being in the "Twelfth district of said county." The claim affidavit made by Lamb, and which was a part of the record of the case, shows on its face that it was made in Taylor county, Ga. It recites that Riley, sheriff of said county, had levied on these lands, which were in the Twelfth district of said county. Therefore this defect in the levy was cured by the recital in the claim which was filed, and rendered certain the locus of the land, and the county of which Riley was sheriff, even if the levy was not properly amendable. There was no merit in the ground of the motion to dismiss because there was a levy on personal property of one of the defendants unaccounted for. The record introduced showed clearly that this property so levied on was claimed by a third party, and that an adjudication was had that the property' was not subject to the fi. fa. in the present case. This brings us to the only material question in this case, and that is whether, under the circumstances shown by the entiles on the execution, and the records from Macon superior court, the judgment was dormant It does not affirmatively appear that any of the various entries of levy on...