56 Ga. 612 | Ga. | 1876
A deputy sheriff being ruled by the plaintiff in ft. fa. for not selling certain land which had been duly levied upon and advertised for sale, made answer that the sale was not had because of the interposition of a claim by a third person, not a party to the execution. The plaintiff traversed that part of the answer. It appears from the record that the claim referred to by the officer was an affidavit and bond purporting to have been executed in the state of Illinois, before a notary public of that state, and that both the claimant and her security in the so-called claim bond appeared on the face of that instrument to be residents of Illinois. The attestation of the notary to the affidavit, was under his seal of office, or
1. An affidavit sworn to out of this state cannot be recognized here without due authentication: 21 Georgia Reports, 208; Ibid., 161. And there is the same reason for requiring the execution of a claim bond to be authenticated. Unless these papers were both duly authenticated, the officer, for that .reason, if for no other, ought to have rejected them.
2. As to notarial acts in the line of commerce, the seal of a notary public will serve for authentication: Code, section 3829. But in administering an oath, or taking bond, to be used in an ordinary claim case, the notary is out of the sphere of commerce; he is a mere magistrate or justice of the peace, and when his act passes beyond his own state, his certificate and seal, unsupported, are worth nothing. He is there an official stranger, and needs a formal introduction.
3. And the certificate of the clerk of a court of record, under what purports to be the seal of the court, will not vouch for him. There is no law, common or statute, that makes such a voucher sufficient. Under the act of congress, even the judicial proceedings of the court itself could not be authenticated thereby, without a further certificate from the judge, chief justice or presiding magistrate, that the clerk’s
The officer in the present case answers, on oath, that he acted in good faith, and his counsel insists that if he committed an error in receiving the claim and in treating it as valid,
4. The answer, in one part of it, assails the judgment as fraudulent upon which was founded the execution that was levied on the land. That is not matter for such an answer. The judgment was rendered by the superior court of Forsyth county, and nothing is averred in denial of the competency of the court in point of jurisdiction. It is the business of the sheriff and his deputy to obey process of execution, and not to raise disputes with a plaintiff about fraud in his judgment.
The court below erred in discharging the rule; and we di
J udgment reversed.