1 Ga. 315 | Ga. | 1846
By the Court
There were three objections made by the plaintiff in error in the court below to the proceedings there, which were all overruled by the court. First, Because the scire facias was issued by the clerk of the Superior Court of Muscogee county, directed to the sheriff of Bibb county, and served by him on the plaintiff in error, who was the sole defendant in said writ of scire facias. We are not aware of the provision of any statute, which confers the authority on the clerk of one county to issue process directed to the sheriff of another county in civil cases, where there is but one defendant sued. The 11th section of the judiciary act of 1799 (Prin. Dig. 421) declares, where a suit shall be instituted in any of the .said courts, on any bond, note, or other written obligation, subscribed by several persons, who reside in different counties, the plaintiff shall have his option, to institute his action in either of the counties ; and the clerk may issue process for the defendants residing out of the county in which the suit is instituted ; and the sheriff of such other county is required to execute and return the same. But here there is only one defendant, and the case made by the record does not bring it within the provision of the 11th section of the judiciary act. The clerk is an officer of limited authority; and it does not appear the law has conferred upon him the power to command the sheriff of Bibb to serve process, under the state of facts presented by the record in this case.
The second ground taken was, Because it appears upon the face of the scire facias, the plaintiff in error,'at the time of suing out and service of the same, resided in the county of Bibb, in which county alone he was liable to be sued. We do not think scire facias against bail is such an original suit as was contemplated by the constitution. The original suit in our judgment gave the court jurisdiction to proceed against the bail, being part of the proceedings which appertain to the original suit.
The third ground taken was, that a judgment could not be entered oh the scire-facias, without the verdict of a jury. As has been already stated, the scire facias is only a part of the proceedings appertaining to the original shit. It calls upon the bail to show cause, why the amount of the judgment rendered in the original suit should not be rendered against him ; if he has nothing to say against it, there appears to be no good reason why judgment should not be rendered against him on motion ; but if he has any answer, or defence to make, by way of plea, why judgment should not go against him, then he is entitled to a jury, to try the issue of facts made by such plea. Such, it is believed, has been the general practice prevailing in our courts on this subject; and we see no reason' for disturbing it. The judgment of the court below, however, must be reversed on the first ground taken, and a new trial granted.