9 Ga. 185 | Ga. | 1850
By the Court.
delivering the opinion.
The only question involved in this case, is the validity of the execution issued against Waters, as County Treasurer of Cher
The authority of the Clerk to issue the execution against Waters, is to be found in the following order or judgment of the Inferior Court: “ Cherokee County, March 14th, 1845 — Ordered by the Court, that the Clerk of this Court do forthwith issue an execution against Henry H. Waters, former County Treasurer for the County aforesaid, in favor of the Justices of the Inferior Court for said County and State, for the sum of five hundred and
This being a summary proceeding, unknown to the Common Law, must be construed strictly. The Statute only authorizes an execution to issue against a County Treasurer, for the amount of money in his hands, on his failing to pay or account therefor within ten days after loritten notice from the Justices of the Inferior Court to that effed.
From the record in this case, it appears that Waters had gone beyond the limits of the State, and for that reason the Court below held that notice was unnecessary. It is a principle of natural justice, which Courts are never at liberty to dispense with, unless under the mandate of positive law, that no person shall be condemned unheard, or without an opportunity of being heard. Flint River Steamboat Co. vs. Foster, 5 Geo. Rep. 202.
The mandate of the law, in the Act of 1825 is, that the County Treasurer shall have written notice to account for the money in his hands, from the Justices of the Inferior Court, and upon his failing to do so, and pay over the same within ten days thereafter, an execution may issue. The County Treasurer, being out of the limits of the State, is not made an exception by the Act requiring the wñtten notice, and the Courts cannot make it one without palpable judicial legislation.
Besides, it does not appear on the face of the judgment of the Justices of the Inferior Court, ordering the execution to issue, that any notice, as required by the Act, had been given to Waters, or that he was beyond the limits of the State — conceding that the latter fact would have dispensed with notice, which we hold would not have been sufficient, according to the positive mandate of the Statute. The judgment of the Justices of the Inferior Court is the foundation upon which the execution is based, and that judgment should show, upon its face, such facts as would authorize the execution to issue, according to the provisions of the Statutes affording the summary remedy against the County Treasurer.
Let the judgment of the Court below be reversed.