Simmons v. Cooledge

• Decision Date: 12 November 1894
• Citation: 21 S.E. 1001,95 Ga. 581
• Parties: SIMMONS . v. COOLEDGE et al.
• Court: Georgia Supreme Court

21 S.E. 1001

95 Ga. 581

SIMMONS .

v.COOLEDGE et al.

Supreme Court of Georgia.

Nov. 12, 1894.

Levy on Personalty— Sale under Order—Absence of Judge—Jurisdiction of Ordinary—Notice.

1. When the judge of the superior court is absent from the county in which a levy of an execution or other process issued by the clerk of that court is made on personal property, the ordinary, under the provisions of section 3648 of the Code, is the only judicial officer authorized to grant an older for the speedy sale of such property, and an order for such sale granted by the judge of the superior court of another circuit is void.

2. Whenever a speedy sale of personal property is made under the provisions of the above-cited section, it should affirmatively appear that two days' notice of the applicant's intention to apply for the order of sale was duly given, unless the case falls within some one of the exceptions specified in that section.

(Syllabus by the Court.)

Error from superior court, Pulton county; J. H. Lumpkin, Judge.

Writ of error by C. J. Simmons on a judgment in favor of P. J. Cooledge & Bro. Reversed.

Simmons & Corrigan. for plaintiff in error.

Harrison & Peeples, for defendants in error.

LUMPKIN, J. It is unnecessary to deal specifically with the numerous questions made in this case. It turns mainly upon the proposition announced in the first headnote. Section 3648 of the Code provides in substance, among other things, that whenever any process issuing from a superior court is levied on personal property of a perishable nature, or which is liable to deteriorate invalue from keeping, or is expensive to keep, and it remains in the hands of the levying officer because of a failure by the defendant to replevy the same, "upon the facts being made plainly to appear to the judge of the superior court, or to the ordinary of the county in which such levy is made, during the absence of the judge of said superior court, " it shall be his duty to order a sale of the property, provided "that no judicial officer shall grant any order for the sale of personal property where the defendant in fi. fa., or other process, or his attorney, has not had at least two days' notice of applicant's intention to apply to such order, which notice shall specify the time and place of hearing."

The question is whether, in the absence of the judge of the superior court from the county, the judge of another judicial circuit has the authority to grant an order of sale under the provisions of this section, or is such authority then confined to the ordinary of the county in which the levy is made? It was insisted that the nonresident judge had such authority by virtue of sections 247 and 248 of the Code. The first of these sections, after declaring that judges of the superior courts have authority in various matters not pertinent to the present inquiry, provides generally, in paragraph 6, that they may ...