Benson & Coleman v. Dyer,

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| Ga. | Nov 28, 1882

Crawford, Justice.

The questions that came up in this case arose upon the hearing of a certiorari by the court below. The certiorari grew out of the errors alleged to have been committed by a justice of the peace in the trial of a claim case.

' x. The first error set forth in the certiorari is, that the levy was illegal, because property in the hands of a party not a defendant in fi. fa. was levied upon for sale, whilst there was sufficient property in the hands of the defendant with which to pay off the debt, and it did not affirmatively appear that it was pointed out by the plaintiff in fi.fa.

Section 3641 of the Code gives the defendant in fi.fa. the right to point out what part of his own property he may think proper, and the levying officer is bound to take it and sell that first, if the same, in his opinion, is sufficient to satisfy the debt and costs; but there is no law which limits the sheriff, or constable, or the plaintiff in fi. fa., to such as may be in the defendant’s possession.

It is the duty of the officer to make the money; and when he has made a levy, the presumption of the law is that it was legally done, unless the contrary appears. It is not necessary to constitute a legal levy of property in the hands of one not a party to the fi.fa. that it should affirmatively appear that the same was pointed out by the plaintiff in fi. fa.

Whilst the pointing out of property by the plaintiff in fi.fa. is an indemnity to the sheriff, it is not essential to the validity of the levy. A claim to property, levied upon in the hands of a third party, is only one of his remedies against the illegal seizure thereof by a levying officer. 60 Ga., 516.

2. The second error assigned in the certiorari is, that the judgment upon which the fi. fa. issued was void, because the facts necessary to give thecourt jurisdiction to render it do not appear upon the docket as required by law.

*193Upon the trial of the claim case, the docket of the justice of the peace was put in evidence by the claimant, and upon it appeared the names of the parties, the amount of the principal debt, the amount of the interest, the amount of the costs, the judgment with its date, and the day of the issuance of the fi. fa., but there was no return of the officer as the law requires; and in this failure consists the ground upon which the claimant rested his objection to the validity of the execution.

Section 457 of the Code requires not only those entries which did appear, but entries of the returns of the officer also. When, therefore, they did not appear, and no further proof was offered to show that services had been acknowledged, or that the defendant had been served with a summons according to law, then it was the duty of the court to have dismissed the levy, instead of finding the property subject to the execution.

Under the various rulings of this court, we cannot hold that the failure of the justice to make that entry upon his docket renders the fi. fa. invalid, and concludes the plaintiff thereon. But we think that the justice might, on his own motion, correct it, if it were but an omission on his part, or he might, on the application of the plaintiff in fi. fa., upon proper proofs correct it, if satisfied that service, or the acknowledgment thereof, should have been duly entered, but was neglected.

In the language of Justice Bleckley, in 62 Ga., 683, we repeat that, “ In a justice court local government is realized in its last analysis. This tribunal is our primary, most rudimentary organ of home rule. It is the neplus ultra of judicial simplicity.”