Wilkins. Sheriff v. Am. Freehold Land Mortgage Co. Op London

• Decision Date: 15 December 1898
• Citation: 106 Ga. 182,32 S.E. 135
• Parties: WILKINS. Sheriff, v. AMERICAN FREEHOLD LAND MORTGAGE CO. OP LONDON, Limited.
• Court: Georgia Supreme Court

32 S.E. 135

(106 Ga. 182)

WILKINS. Sheriff,

v.AMERICAN FREEHOLD LAND MORTGAGE CO. OP LONDON, Limited.

Supreme Court of Georgia.

Dec. 15, 1898.

Rule against Sheriff—Levy—Failure to Sell.

The actual injury sustained by the plaintiff in fi. fa. being the measure of the sheriff's liability for not selling the property levied upon, it was error, in a rule against him for a failure to sell, to make the rule absolute for the full amount of the execution, when it was alleged in his sworn answer, which was not traversed, that designated parts of the property levied upon belonged, at the rendition of the judgment and at the time of the levy, to certain named parties other than the defendant in execution, and were not subject thereto, and that the value of the balance of such property was less than the amount of the fi. fa. (Syllabus by the Court.)

Error from superior court, Miller county; H. C. Sheffield, Judge.

Rule by the American Freehold Land Mortgage Company of London, Limited, against J. S. Wilkins, sheriff, for failure to sell land on execution. Rule made absolute, and sheriff brings error. Reversed.

Donalson & Hawes, Harrison & Bryan, and A. G. Powell, for plaintiff in error.

W. C. Worrill and Anderson, Felder & Davis, for defendant in error.

PISH, J. The defendant In error ruled Wilkins, sheriff, for not selling certain lands, mules, and cotton, which he had levied upon as the property of Clifton, by virtue of an execution proceeding for such company against Montgomery, Clifton, and others. The sheriff answered under oath, and, among other reasons for his not selling the lands and the mules, it was alleged in the answer that when the judgment was rendered upon which the execution was issued, and at the time of the levy, the lands and the mules were not of the property of Clifton, but that the lands were owned by the Bank of Thomasville, and the mules belonged to Ehrlich & Co., and that neither the lands nor the mules were subject to the execution. The answer alleged that the value of the cotton was $331, and the only reason given for not selling it was that Clifton had presented an affidavit of illegality to the sheriff, which he accepted in good faith, believing it to be legally sufficient It appears from the record that the illegality was insufficient in law, and that the court had so held. The sheriff's answer was not traversed. Upon the hearing the court made the rule absolute for $1,238.30, as the principal, interest, and cost due upon the execution at the time the sheriff accepted the illegality, with interest on such amount at 20 per cent, per annum from date of the rule absolute. To the granting of such rule the sheriff excepted.

Under section 4770 of the Civil Code, a sheriff is liable to an attachment for contempt of court whenever it appears that he has...