Smith v. Bell

• Decision Date: 07 June 1899
• Citation: 107 Ga. 800,33 S.E. 684
• Parties: SMITH. v. BELL.
• Court: Georgia Supreme Court

33 S.E. 684

107 Ga. 800

SMITH.

v.BELL.

Supreme Court of Georgia.

June 7, 1899.

EXECUTION—AMENDMENT—CONTINUANCE.

1. An execution in which no person is named as plaintiff, but regular in all other respects, is not void, and the officer issuing the same may amend it by inserting the name of the plaintiff in the judgment upon which the execution was issued, and such an amendment will not cause the levy to fall.

2. Whether the trial of a claim case shall be suspended in order to allow the execution to be amended is a question addressed to the discretion of the presiding judge.

(Syllabus by the Court.)

Error from superior court, Henry county; W. A. Brown, Judge pro hac.

Action by Castellaw & Colvin against S. S. Kendrick. Judgment for plaintiffs. Execution assigned to J. E. Smith, and on levy J. B. Bell interposed a claim. Judgment for claimant, and Smith brings error. Reversed.

B. P. Bailey and J. F. Wall, for plaintiff in error.

W. H. Beck and O. H. B. Bloodworth, for defendant in error.

COBB, J. Castellaw & Colvin recovered a judgment at the February term, 1897, of a justice's court against S. S. Kendrick. On February 4, 1897, the justice issued an execution against Kendrick, which followed the judgment in all respects except that no person was named therein as plaintiff. Indorsed upon the execution was the number of the district, the names of the plaintiffs and defendant in the judgment, the amount of the principal and interest of the judgment, and a bill of costs. This execution was transferred by Castellaw & Colvin to J. E. Smith, and, after such transfer, was levied upon certain personal property to which a claim was interposed by J. B. Bell. When the case came on for trial in the superior court on appeal, Smith, the transferee, offered in evidence the execution above referred to. Upon objection being made to the same by the claimant, the transferee moved to amend it by inserting therein the name of Castellaw & Colvin as plaintiffs, and thus make the execution conform to tbe judgment. To this motion tbe claimant objected upon the ground that an execution issued by a justice of the peace could not be amended after it had reached the superior court on appeal. This objection was sustained by the court, and the motion to amend overruled, and this ruling is assigned as error. Smith then made a motion to allow the justice who issued the execution to amend the same by inserting therein the name of the plaintiffs in the judgment; such justice being present in court with his docket, upon which the judgment above referred to appeared, and having been allowed to testify that the execution was issued on the judgment referred to, and that the name of the plaintiffs was omitted from the execution by a mistake on his part. To this motion the claimant also objected upon the ground that the execution was fatally defective, and could not be amended in the superior court. The court sustained the objection, and overruled the motion to amend, and this ruling is assigned as error. The court then, on motion of claimant, excluded the execution, and dismissed the levy, and this ruling is also assigned as error.

1. The question presented for determination i this case is whether an execution, regular in all respects except that no person is named therein as plaintiff in the judgment upon which it was issued, is absolutely void, or merely irregular, and hence amendable. We do not find any case decided by this court in which this exact question Was passed upon. The Code declares that "all executions must follow the judgment from which they issued, and describe the parties thereto as described in such judgment." Civ. Code, § 5417. There are numerous cases cited under the section just quoted which establish the proposition that, if there is some one named in the execution as plaintiff in the judgment, a misdescription in the name of the plaintiff will not invalidate the execution, when it can with rea sonable certainty be ascertained from the terms of the execution that it was issued upon the judgment with which it is sought to connect it. It is also settled by a decision of this court that an execution in favor of an entirely different person from the one named in the judgment as plaintiff is void. Underwood v. Harvey (Ga.) 32 S. E. 124. See, in this connection, Blanchard v. Blanchard, 25 N. C. 105. It is absolutely essential that the execution should be connected with the judgment; the latter being the only authority for the issuance of the former. 1 Freem. Ex'ns, § 43. Where, upon an inspection of the execution, enough appears upon its face to connect it with the judgment, a variance between the judgment and execution will not vitiate the latter, and this is the reason at the foundation of the decisions above referred to holding that a mere misdescription of the parties to an execution is not...