19 S.E.2d 721 | Ga. | 1942
The entry of levy set forth in the question propounded by the Court of Appeals does not indicate that the levy in attachment was void. Consequently the sheriff must necessarily have been made a party to the proceedings on the affidavit of illegality, attacking his return.
In a case where it appears on the face of the record that the court issuing the fi. fa. was without jurisdiction, or where the return shows on its face that the levy was absolutely void, an affidavit of illegality can be tried without recourse to a traverse of the sheriff's entry, and therefore the officer need not be made a party to the illegality proceeding. Maund v.Keating,
The Code, § 39-103, provides: "The officer making a levy shall enter the same on the process by virtue of which such levy is made, *552
and in such entry shall plainly describe the property levied on and the amount of the interest of defendant therein." § 39-120 is as follows: "The officer levying on land under an execution shall, within five days thereafter, leave a written notice of such levy with the tenant in possession of the land, if any, or with the defendant if in the county, or transmit such notice by mail to the defendant within the time aforesaid." However, the courts have several times ruled that the requirement of the section last quoted, with respect to levies of executions, is directory only. Solomon v. Peters,
2. The levy not being void on the face of the officer's return, the question propounded must be answered in the negative. This is true for the reason that not only is the defendant in fi. fa., as a party to the case, directly concerned in the validity of the judgment and execution under which the levy of the execution was made, and therefore in the validity of the attachment levy by which jurisdiction of the court was acquired, but the determination of the question raised by the traverse impeaching the return is one in which the sheriff and through him his bondsmen are likewise concerned, and therefore the sheriff should have an opportunity to be heard on the issue therein made.O'Bryan v. Calhoun,
All the Justices concur.