Foster v. Rutherford

20 Ga. 668 | Ga. | 1856

By the Court.

Lumpkin, J,

delivering the opinion.

[1.] Was the Court right in refusing to order the fund in 'Court to be paid over to Samuel Rutherford ?

We think so. Only one plaintiff ia.fi. fa. had been heard. It is true, the issue of payment tendered by him was found for Rutherford. But the other judgment creditors were neither parties nor privies to this proceeding, and were entitled to their day in Court.

Under the circumstances, the Court was not warranted, perhaps, in directing, peremptorily, all the other judgment creditors to unite in tendering an issue. Every man must have the privilege or opportunity of litigating, where his interests are at stake. No one should be compelled to do so against his will.

The better practice in all such cases, and the one which we propose to establish, is this: The rule against the Sheriff, at the instance of any creditor, makes.the case. Let all other parties in interest who have a claim upon the fund, be no-tiffed, in writing, by the Sheriff or by the pro-movant, of the pendency of the rule, if taken, or let the creditor give like notice of his intention to apply, if it b.e not done. And then, all persons in interest thus notified, may or may not, at their option, come in. Whether they do or not, they will, in such case, be bound by the judgment.

Heretofore, there has been no practical difficulty in the distribution of money. Any creditor moved a rule against the Sheriff. In his return, the officer reported the amount of money raised, together with the liens in his hands claiming it. And it was considered the duty of all creditors to ■take notice of the sale and to file their liens in the hands of the Sheriff. If no objection tras made, the fund was directed to be paid out to the different liens, according to their legal priority. If any objection was interposed to any of the liens, an issue was immediately made up and tried. And there was an end of the matter.

[2.] But the ingenuity of Counsel has invented this new scheme of delay and litigation. One lien only is produced at a time; an issue is formed and tried, and then another and so, the fund is held up from Court to Court, unproductive and liable to waste; and thus, justice is defeated. Something must be done to counteract it, and the plan suggested will accomplish this. And it is in conformity to all the analogies of the law. There is but one case — that made by the rule: still, each creditor will be entitled to make out or defend his OAvn ground. And if notified, there is just as much reason Avliy he should be bound as the warrantor of a deed, who is vouched by his vendee.

Let some rule be adopted to prevent delay, or the hope-thereof, and we doubt not the threatened mischief from this, modern innovation will be' averted.