Lewis v. Smith

• Decision Date: 30 November 1896
• Citation: Lewis v. Smith, 99 Ga. 603, 27 S.E. 162 (Ga. 1896)
• Parties: LEWIS v. SMITH et al.
• Court: Georgia Supreme Court

27 S.E. 162

99 Ga. 603

LEWIS

v.SMITH et al.

Supreme Court of Georgia.

Nov. 30, 1896.

Clerks of Court—Powers—Judgment—Dormancy.

1.Though clerks of the superior court have, under section 268, par. 2, of the Code, express authority "to receive the amounts of all costs due in the court of which they are clerks, "they are not officers authorized by law "to execute and return" executions; and consequently a mere entry by a clerk upon an execution, acknowledging that he had received the costs due thereon, will not suffice to relieve from dormancy the judgment upon which the execution is based.

2.This cast differs from that of Gholston v. O'Kelley, 7 S. E. 107, 81 Ga. 19, in which it was held that, where a receipt for costs was entered upon an execution by a justice of the peace, the date of such receipt would constitute a new point from which the statute as to dormancy would begin to run.A justice of the peace is a collecting officer liable to rule as such; and, while a clerk would be subject to rule for nonpayment of costs actually collected by him, he could not be ruled for a failure to collect.The doctrine of the Gholston Case, as to this point, should not be extended.

3.A judgment cannot be saved from dormancy by making upon the execution a nunc pro tunc entry of a levy alleged to have been made at a time when the judgment was not dormant.

4.The mere fact that a defendant in execution made partial payments of the judgment debt to the plaintiff in execution, and took re ceipts therefor from the latter, which were not entered upon the execution, did not suspend the running of the statute as to dormancy; nor is the running of this statute affected by the death of a defendant in execution.(Syllabus by the Court.)

Error from superior court, Jasper county; John C. Hart, Judge.

Controversy between J. I. Lewis, executor, and J. H. Smith and others, executors.Prom a judgment for the latter, the former brings error.Affirmed.

J. C. Key and J. W. Preston, for plaintiff in error.

P. Jordan, for defendants in error.

LUMPKIN, J.This case turned upon the question whether or not an execution issued from a superior court was dormant.In our opinion, the trial judge correctly held that it was so.

1-2.Among other things, it was claimed that the execution was saved from dormancy by an entry thereon made by the clerk of the superior court, acknowledging the receipt of the clerk's and sheriff's costs.If this entry could properly be treated as one made by an officer authorized by law to "execute and return" the process, the execution would not be dormant.We do not think, however, clerks of the superior courts are such officers.Although, under section 268, par. 2, of the Code, they have authority to "receive the amounts of all costs due in the court of which they are clerks, "they are not collecting officers.They have no authority to levy executions, and we know of no statute requiring any "actings and doings" on their part with reference to the enforcement of this form of process, or imposing upon them any duty as to making "returns" concerning the same.If a party voluntarily pays to the clerk the costs due upon an execution, he may lawfully...