7 Ga. App. 207 | Ga. Ct. App. | 1909
Milton Harris brought a rule against Willis Edwards, sheriff, alleging, that he obtained a judgment on March 7, 1906, in the city court of Beidsville, against Josiah Collins and Missouri Collins; that the execution was immediately put in the hands of the sheriff, and had been in his hands a sufficient time for him to have made the money, but that he had not done so. The sheriff filed an answer, in which he said, that he promptly levied the fi. fa. in question upon the property of the defendant, Missouri Collins, and that she filed an illegality thereto, on the ground that the judgment was based on a bond signed by her as security for her husband, and she had no interest in the same except as security; and that this
We think the judge erred in making the rule absolute against the sheriff; and the judgment rendered must necessarily be set aside, We do not know that the judgment is not proper under the facts of the case as they really exist, but it is very plainly erroneous so far as appears from the record, which must control us. As was ruled in Reid Phosphate Co. v. Weichselbaum Co., 1 Ga. App. 420 (58 S. E. 122), and the authorities therein cited, the answer of the sheriff to a rule against him is to be accepted as a true statement of all the facts therein contained, unless it is traversed; and in the absence of ■a traverse to the sheriff’s answer, no testimony can be adduced. This ruling rests upon sound reason. Certainly, under the statement contained in the sheriff’s answer in this case (one of the defendants being insolvent, and the illegality filed by the other having been sustained), the sheriff was not liable to rule. Apparently the judgment making the rule absolute was based upon the consideration that Edwards, the sheriff, had accepted the wife of the defendant in trover as- security upon the bail-bond. No evidence could legalty have been adduced in the court below unless the answer of the sheriff had been first traversed. No point can be made on the fact that the answer is not sworn to; because it is certified in the bill of exceptions that the plaintiff admitted the facts as set up by the answer, made no traverse thereto, and in open court waived the want of verification thereof. If a traverse had been filed, so that evidence in behalf of the plaintiff could legally have been considered, and it had appeared that Edwards accepted as security, upon the bail-trover bond, the wife of the defendant in trover, the rule could properly have been made absolute; but there is nothing upon which the court could have adjudged that Edwards was sheriff at the time that Collins’ wife was accepted as security upon the bail-bond. This fact does not appear from his answer;
Judgment reversed.
