155 Ga. 650 | Ga. | 1923
(After stating the foregoing facts.)
The Civil Code (1910), § 5630, provides that “In all cases
The general demurrer raises the question as to whether the petition set out a cause of action. The petition alleged, among other things, that the sheriff of Warren County had levied an execution in favor of the Warren County Fertilizer Company against Mrs. Bessie Cason Battle, on certain described property set out in the petition, and that about the time the judgment was obtained Mrs. Battle made several conveyances of property as security, conveying different tracts of land, which was levied on under the execution, to different plaintiffs as set out in the petition. The execution was attacked by all of the plaintiffs as being void for various reasons, among others, that the date on which it had been entered upon the general execution docket was changed from April 14th to April 12th, 1921, and that there was no note or entry or certificate of the change in the date of its entry upon the general execution docket made by the clerk of the superior court, as to why such change in the date was made. It was also. alleged that the execution was void, because it was executed by Miss Opal Kitchens, who was not a deputy clerk in the office of the
The Civil Code (1910), § 6018, provides that “Executions (except as hereinafter provided) shall be issued by the clerks o'f the several courts in which judgment shall be obtained, and beaT test in the name of the judge of such court, and shall bear date from the time of their issuing, and (except as hereinafter provided) shall be directed 'to all and singular the sheriffs of this State and their lawful deputies/ and may be levied on all the estate, real and personal, of the defendant, subject to levy and sale.” In Williams v. McArthur, 111 Ga. 28 (2) (36 S. E. 301), it was held that “ An execution is not legally issued when what purports to be the signature of the clerk thereto is not affixed by him or by his authority.” In Biggers v. Winkles, 124 Ga. 990 (53 E. 397), this court held: “ 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 can not 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.” And see the opinion in that case. In Ray v. Atlanta Trust & Banking Co., 147 Ga. 265 (3) (93 S. E. 418), it was held that “The execution under which the land in controversy was sold, not having been signed by the clerk of the court rendering the judgment, was void; and the trial court did not err in holding that 'the levy and sale did-not have the effect in any way to change the status of the judgment and property.’ ”
Taking the allegations of the petition to be true, as we must on demurrer, the execution in the present case was signed by one
We are also of the opinion that there is equity in the petition, and that in order to determine the rights of all the plaintiffs, which are common so far as the attack on the execution is concerned, a court of equity will entertain jurisdiction of the same in order to avoid a multiplicity of suits. Civil Code (1910), § 5469 (2); East Atlanta Land Co. v. Mower, 138 Ga. 380 (3) (75 S. E. 418), and cases cited; Chamlee v. Atlanta Brewing &c. Co., 131 Ga. 554 (62 S. E. 1032); Smith v. Dobbins, 87 Ga. 303 (13 S. E. 496); Georgia Peruvian Ochre Co. v. Cherokee Ochre Co., 152 Ga. 150, 153 (108 S. E. 609).
If it should be determined on the trial of the case, under the evidence, that the pa-rty who signed the execution had legal authority so to do, and it should also be determined that the date of the execution was changed without authority, and that such change affected the rights of one or more of the parties to this case, then and in that event the relative rights of the respective parties can be determined accordingly. We reach the conclusion that the court below erred in dismissing the petition on demurrer.
Judgment reversed.