Mclendon v. Mcglaun

• Decision Date: 31 January 1878
• Citation: 60 Ga. 244
• Parties: Mclendon, sheriff. v. McGlaun et al.
• Court: Georgia Supreme Court

60 Ga. 244

Mclendon, sheriff. v. McGlaun et al.

Supreme Court of the State of Georgia

(January Term, 1878.)

Page 244*

Res adjudicata. Practice in the Superior Court. Before Judge Clark. Webster Superior Court. March Term, 1877.

Reported in the opinion.

D. B. Harrell & Son, for plaintiff in error.

Guerry & Son; W. A. Hawkins, for defendants.

Jackson, Judge.

The sheriff had on hand three hundred and eighty dollars, which he was ordered by the judgment of the superior court to deposit on interest in the Bank of Americus; he did not do so, and was attached for contempt; from that judgment he appealed to this court; and the question is, was he in contempt of that court?

He says he was not for two reasons, first, because the order to deposit the money was illegal; secondly, because his answer shows that he was not in contempt. That answer appears in the record, and states that he brought the judgment requiring him to make the deposit to this court, that his writ of error was dismissed for informality, and thereby the judgment was affirmed; that before the remittitur was made the judgment of the superiorcourt, a judgment, at the term when it was so made the judgment of that court, was *finally rendered ordering him to pay out the money to certain fi. fas. —that this last judgment was excepted to and brought to this court—that it was affirmed and filed in the clerk\'s office on the 16th of February, 1877, and on the same day be paid the money to certain fi. fas., and in his answer he names the fi. fas. upon which he paid it, butdoes not give the amount paid to each, leaving it blank—he does not exhibit the judgments of the court in his answer on which he relies, but refers to them in the record, and thus makes them part of his answer.

On turning to the record to see the verification of the answer, we find no remittitur at all from this court to the superior court, and no date to the judgments rendered by that court—at least none to the judgment which directed the sheriff to pay out the money to certain fi. fas. —so that the answer is not verified by that judgment, and if it had been exhibited to the answer it would not have shown its correctness.

So, too, in turning to the record to see what sums he did pay as the receipts on the fi. fas. show—the fi. fas. named in his answer—it appears that he paid out $304.40 instead of $380.00, to-wit: to Dougan $149.14, to Cato $95.60, to Lamb & Drain $27.14, and to Boon $32.52, the parties to whom he says in his answer he paid the money, and the only fi. fas. to which there are...