119 Ga. 950 | Ga. | 1904
A fi. fa. from a justice’s court was levied upon certain personal property. The defendant filed an affidavit of illegality, alleging that the execution was proceeding illegally, for the reason that more than seven years had elapsed from the time the execution was issued before either the execution or the en
Under the acts of 1823 (Cobb’s Dig. 498) and 1856 (Acts 1855-6, p. 234) no judgment obtained in the courts of this State could be enforced after the expiration of seven years from its rendition, when no execution had been issued, or, if the execution had been issued, after the expiration of seven years from the time of the last entry upon the execution by an officer authorized to execute and return it. By the act of 1885 (Acts' 1884-5, p. 95 ; Civil Code, § 3761), it was enacted that no judgment should be enforced “ after the expiration of seven years from the time of its rendition, when no execution has been issued upon it and the same placed upon the execution docket as now provided by law, or when the execution has been issued and seven years have expired from the time of the record, upon the execution doeket of the court from which the s.ame issued, of the last entry upon the execution made by an officer authorized to execute and return the same.” This made it necessary, in order to continue a judgment in life, not only to have- the entries made upon the execution but to have
In the present case no record of the execution or of the entries thereon was made on the execution docket of the superior court until after the expiration of more than seven years from the time of the rendition of the judgment and the issuing of the execution. If the act of 1885 was not changed by the act of 1889, the judgment was clearly dormant. Smith v. Bearden, 117 Ga. 822. The sole question in the present case is whether the entries upon the general execution docket served to keep the judgment in life. Prior to the act of 1889 there was no general execution docket kept. When that act provided that one should be kept in each
It was argued, however, that the placing of the execution and the entries thereon upon the general execution docket was such a public act as would prevent the judgment from becoming dormant. This is not true. Under the ruling in Hollis v. Lamb, 114 Ga. 740, a judgment may be prevented from becoming dormant either by proper and timely entries on the execution, duly recorded on the execution docket of the court from which it issued, or by active and bona fide efforts on the part of the plaintiff to enforce his execution by appropriate legal proceedings, duly taken. In the opinion it was said that “ the dormancy of a judgment is prevented either by proper entries every seven years, duly recorded on the execution docket, or by a bona fide public effort on the part of the plaintiff in fi. fa. to enforce his execution in the courts of the country at such times and periods that seven years will not elapse between such attempts or between such an attempt and a proper entry.” The mere record of an entry on the general execution docket is not an effort to enforce the execution; but a mistaken attempt to keep the judgment alive. Such a record is not such an active and public effort as was contemplated by that decision, and can not be considered as sufficient to keep the judgment in life, especially as it is done under an act which by its express terms does not affect the validity or force of the judgment-as between the parties thereto. ' The present case is clearly distinguishable foi another reason. Hollis v. Lamb was put on the ground
Judgment affirmed.
The act of 1822 was entitled “ an act to amend the 26th section of the judiciary act passed 16th day of December, 1799, and also to prevent the fraudulent enforcement of dormant judgments.” The preamble recites that “ dormant judgments, by being collusively kept open, are made the instruments of fraud on innocent purchasers, and often operate oppressively on vigilant and bona fide creditors.” The 3d section of the act.declared that “ all judgments upon which no execution shall be issued, or on which no return shall be made on the execution, shall be void and of no effect.” This section of the act was amended
The amendment of that section of the Code of 1882, by the act of 1885 (Acts of 1884-5, p. 95), is embodied in section 3761 of our present Civil Code. “ That act made practically but one change in the law as it then stood in relation to the dormancy of judgments, and that was that the entries made on an execution by the officer, which were sufficient to prevent its dormancy, should be entered upon the execution docket of the court from which it issued; and it is now declared, in that section of the code, that when seven years have elapsed from the time of the record upon the execution docket of the last entry upon the execution, made by an officer authorized to execute and return the same, the judgment shall be dormant. If the provisions of the previous law which- required proper ' entries to be made upon the execution every seven years in order to prevent dormancy did not, under the construction of that statute'by our court, render such judgment dormant in the absence of such entries when the plaintiff in fi. fa. was making public attempts to enforce his execution within the limitation, it would be inconsistent to now rule that the mere addition of a requirement that such entries should be placed upon the' execution docket has abrogated the rule of equitable construction which has invariably been given to statutes in relation to the dormancy of judgments. In harmony with the spirit of the rul
It is true that this court, in the case of Nowell v. Haire, 116 Ga. 386, held that “An entry made by a proper officer upon an execution issued from a judgment, unless recorded upon the execution docket of the court from which the execution issued, will not, even as between the parties to the judgment, arrest the running of the dormancy statute.” And the case of Smith, Barry & Co. v. Bearden, 117 Ga. 822, follows the foregoing case, merely adopting the language just quoted. I he case of Nowell v. Haire seems to be a new departure, ana, witbout noticing the equitable rule of construction heretofore adopted by this court, is based strictly and literally on the very words of the statute. It does not seem that the former decisions of this court establishing a different rule were, by permission of the court, expressly questioned