Riggers v. Winkles

• Decision Date: 19 February 1906
• Citation: 124 Ga. 990,53 S.E. 397
• Parties: RIGGERS. v. WINKLES.
• Court: Georgia Supreme Court

53 S.E. 397

(124 Ga. 990)

RIGGERS.

v.WINKLES.

Supreme Court of Georgia.

Feb. 19, 1906.

Execution—Form—Signature of Clerk,

One of the duties of the clerk of the superior court is to issue and sign executions based upon judgments rendered in that court. He may appoint a deputy, and such deputy will be authorized to issue executions, but he should not sign them with the name of the clerk, as if the clerk himself had made the signature. The clerk of the superior court cannot by oral authority confer general power upon another to sign his name to executions issued in his absence and not under his immediate direction and control.

(Syllabus by the Court.)

Error from Superior Court, Haralson County; A. L. Bartlett, Judge.

On levy of execution by J. S. N. Biggers on property of Mrs. McNeill, J. S. Winkles interposes a claim. Judgment for claimant, and Biggers brings error. Affirmed.

An alias fi. fa. purporting to have been issued by the clerk of the superior court of Haralson county on January 25, 1893, in lieu of a lost original which had been issued on a judgment in favor of Grow and others against Mrs. McNeill and transferred to Biggers, was levied on certain property, and a claim was interposed by Winkles. On the trial, when the execution was offered in evidence, objection was made to it on the ground that the name of the clerk of the superior court was signed to it by Biggers who was at that time acting as deputy clerk. It purported on its face to have been signed by the. clerk. The court heard the evidence of Biggers in connection with this objection. He testified in substance, that he worked in the office of the clerk of the superior court as the deputy; that it was his business to issue these fi. fas. and papers: that he issued most of the fi. fas.; that the clerk instructed him to do so and gave him authority to sign his (the clerk's name): and that he signed Beall's (the clerk's) name to this one. He further testified; "I don't remember that he pointed out this one specially to me, telling me specially to sign his name to this one. I don't remember about his being in the office at this time. I don't remember that he was standing right there. It was the practice for me to issue them, and sign his name to them. I was deputy clerk. He assigned me that part of the work to do. I usually kept the minutes. Was another thing he assigned me to do." The court rejected the evidence, and, no further evidence being offered, dismissed the levy. The plaintiff excepted.

E. S. Griffith, for plaintiff in error.

W. R. Hutcheson, for defendant in error.

LUMPKIN, J. (after stating the facts). One of the duties of the clerk of the superior court as declared by the Code of this state is "to issue and sign (and attach seals thereto when necessary) every summons, subpoena, writ, execution, process, or order, or other paper under the authority of the court." Civ. Code 1S95, § 4360 (4). He may appoint a deputy or deputies, who shall take the same oath as the clerk, and "whose powers and duties are the same as long as the principal continues in office and not longer." Section 4359. Process signed by the deputy clerk of the superior court is as valid and sufficient in law as if signed bythe principal clerk. Goodwyn v. Goodwyn, 11 Ga. 178; Dever v. Akin, 40 Ga. 423; Graves v. Warner, 26 Ga. 620. When what purports to be the signature of the clerk to an execution is not affixed thereto by him or his authority, the execution is not legally issued. Williams v. McArthur, 111 Ga. 28, 36 S. E. 301. The deputy could have signed the execution in his own name as deputy. But was it lawful for him to sign the name of. the clerk, and was the execution so issued a lawful execution? In Ellis v. Francis, 9 Ga. 325, it was held that where a constable who wrote a bad hand requested a justice of the peace in his presence to make a return of "no property" on two justice's court executions, he knowing the return to be true of his own personal knowledge, it was considered as his act and valid in law. See, also, Cox v. Montford, 66 Ga. 62. In Weaver v. Wood, 103 Ga. 88, 29 S. E. 594, it was said: "While an entry may, in the immediate presence and by the direction of the levying officer, be made upon an execution by another who acts as a mere scrivener or clerk, and while an entry made under such circumstances may be upheld as the act of the officer himself, and thus protect the judgment upon which it is issued from becoming dormant, yet such officer has no power to delegate to another the authority in his absence, either generally or In a special ease, to perform for him, or in his name, this particular act which the law requires him personally to perform." In the opinion it was said that it would not be wise to extend the rule further than was laid down in the cases of Ellis v....