Johnson v. Johnson

• Decision Date: 31 July 1874
• Citation: 52 Ga. 450
• Parties: C. F. Johnson et al., executors, for use, plaintiffs in error. v. W. R. D. Johnson, defendant in error.
• Court: Georgia Supreme Court

52 Ga. 450

C. F. Johnson et al., executors, for use, plaintiffs in error. v. W. R. D. Johnson, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1874.)

Service. Sheriff. Estoppel. Before Judge Gibson. Warren Superior Court. April Term, 1874.

An execution issued in favor of C. F Johnson et al., executors, against W. R. D. Johnson, for $341 30 principal debt, with interest from August 16th, 1870. On November 1st, 1873, it was levied upon certain lands as the property of the defendant. On the 20th of the same month he filed an affidavit of illegality, upon the ground that he neither had been served nor waived service. The entry of the sheriff on the declaration showed personal service on March 20th, 1873. Upon the trial of the issue thus formed the following facts appeared:

The sheriff had left a copy of the writ at the house of the brother of the defendant, and had so notified him, asking if he would accept such service, and stating that if he would not, although it was late in the day, he would return and procure the copy and hand it to him. The sheriff swears that the defendant replied that he would accept such service as legal, and that it was unnecessary for him to return and procure the copy. The defendant admitted substantially all of the facts aforesaid, except his consent to accept the service as legal; this he emphatically denied. He resided about three miles from his brother, at whose house the copy was left by the sheriff.

The Court charged the jury, "that there could only be service by leaving a copy with the defendant or at his residence, that he could only waive service in either of these two modes, in writing, and could not accept any other service so as to bind him; that he might back out of any agreement he might make with the sheriff, and that unless they find the *service in accordance with these instructions, they should find for the defendant."

To this charge the plaintiff excepted.

The jury found for the defendant. Error is assigned upon the above ground of exception.

W. M. & M. P. Reese, for plaintiffs in error.

T. P. Westmoreland; A. S. Morgan, for defendant.

McCAY, Judge.

1. Under the charge of the court the evidence of the sheriff was entirely excluded from the consideration of the jury. This, we think, was error. We do not mean to say that a man can, by agreement, agree to any other service of a writ than that required by law. But we do say that if he does so, and others act on the agreement so that they will be damaged if it be repudiated, the party making the agreement cannot deny its legal effect. Here, if the sheriff tells the truth, the defendant deliberately misled him, and it is asked that a court shall aid that defendant to make his fraud effective. If this defense is successful, the sheriff will be liable for a false return, and that...