37 Ga. App. 581 | Ga. Ct. App. | 1927
J. A. Hall foreclosed a laborer’s lien in- Laurens county, of which the defendant, Jeffreys-McElreath Company, was alleged to be a resident. The execution was levied on lumber at the defendant’s sawmill in that county, where the plaintiff worked. The execution which was issued by the clerk of the superior court of Laurens county was made returnable, and was returned, to that court. The defendant filed a counter-affidavit, and also a plea to the jurisdiction, claiming that it resided in Bibb county and was suable in that county only. This plea being sustained by the evidence upon the trial, the court, on motion of the plaintiff, transferred the case to the superior court of Bibb county. In that court the defendant moved to dismiss the proceeding upon the ground that the execution could be issued only in the county of the defendant’s residence; whereupon the plaintiff offered an amendment to the affidavit of foreclosure, alleging that at the time of the original foreclosure the defendant had property in Laurens county, consisting of the product of the plaintiff’s labor and the sawmill at which he worked. The court refused to allow
Counsel for the defendant concede that it was proper for the plaintiff to make the affidavit of foreclosure before any officer authorized to administer an oath, but contend that it was not proper for the affidavit to be filed with the clerk of the superior court of Laurens county, or for the execution to issue from any court other than a court of the county of the defendant’s residence, which was Bibb county, notwithstanding the defendant may have owned property in Laurens county. The contention of counsel for plaintiff is that the foreclosure could be made and that the execution could be issued in any county in which the defendant had property, although the law required that the case be transferred to the county of the defendant’s residence for trial upon the counter-affidavit.
In our opinion the court erred in not allowing the amendmenand in dismissing the case. In Tharpe v. Foster, 52 Ga. 79, Tharpe foreclosed a laborer’s lien against Foster and had the execution based thereon levied on cotton situated in Bibb county. The affidavit of foreclosure was made and the execution was issued in that county. The defendant filed a counter-affidavit, setting up, among other things, a want of jurisdiction in Bibb superior court, on the ground that the defendant was a resident of Morgan county. On an agreed statement of facts the trial court sustained the defense and ordered the foreclosure and execution both to be set aside. The Supreme Court said that the main question was whether the process could issue in another county than that of the defendant’s residence, and proceeded to answer it -as follows: “Tl>e act of March 16th, 1870, is silent on this point. We do not think there is any constitutional difficulty in the way of suing it out in another county. Section 12, article 5 of the constitution, after reciting where equity cases, cases involving titles to land, etc., shall be tried, says, all other cases shall be tried in the county where the defendant resides. With this provision in all the constitutions, it has been held that an attachment can be issued by an officer of one county and returned to the courts of another: 36 Ga. 597; Code, §§ 3265, 3269, 3272. The act of 1869, Code, § 4082, declares that ‘any person who may have rent due, may, by himself, his agent or attorney make ap
A comparison by number of the code-sections referred to in this decision with those of. the other codes clearly demonstrates that the Supreme Court was referring to the Code of 1873. It is also apparent that in mentioning section 1990 the court intended to refer to section 1991. It seems there was a further clerical error, in the reference to the act of March 16, 1870. The allusion evi
The question for determination then is, did the legislature in adopting the Code of 1895 amend the statute law as it existed at the time of the decision in the case of Tharpe v. Foster, supra, so as to abolish the rule that in a, foreclosure proceeding such as this the execution may be issued in any county in which personal property belonging to the defendant and subject to the lien is situated, although the defendant may reside elsewhere. “In the codification of the laws it is almost impossible to go into all the details of the different statutes codified. Where the code sections are incomplete or ambiguous, they must be construed in connection with the original acts.” Bacon v. Jones, 116 Ga. 136, 139 (42 S. E. 401). “The rule is that, unless the contrary manifestly appears from the words employed, the language of a code section should be understood as intending to state the existing law and not to change it.” Lamar v. McLaren, 107 Ga. 591, 599 (34 S. E. 116).
Since, under the act of December 19, 1893 (Ga. L. 1893, p. 119), providing for the appointment of commissioners to codify the laws of Georgia, the commissioners were empowered only “to codify and arrange in systematic and condensed form” the laws of the • State then in force, the presumption is that the Code (of 1895) as prepared by such commissioners and as “adopted and made of force as the code of Georgia” is merely an expression of the law as it existed previously to the codification, except where, from the language used, an intention to amend or change the existing law is manifest. Where such intention appears, it must, of course, be given effect, not-because of any power of legislation vested in the codifiers, but because of the adopting statute. “Where in the process of codification of an act of the legislature, mere verbal changes occur, resulting from the transposition of words or from, the reconstruction of a sentence, it will not be presumed that it was the intention of the codifiers to change the law as laid down by the General Assembly; but on the contrary, in order to bring about such changes, there must be somewhere in the legislation of the State the expression of a manifest purpose to make the change in the law.” Greenfield v. Farrell Heating &c. Co., 17 Ga. App.
We find nothing in section 2816 of the Code of 1895, nor in anything omitted, to convince us of an intention on the part of the codifiers to do other than “arrange in systematic and condensed form” the then-existing law upon the subject of the foreclosure of liens on personalty o,ther than mortgages; and so we are of the opinion that the law on this subject remains the same, as concerns the question under consideration, as when the Supreme Court decided the Thorpe case. See generally, on the question of venue in eases of this character, Cox v. Felder, 36 Ga. 598; Cape Fear Boat Co. v. Torrent, 46 Ga. 585; Hardeman v. DeVaughn, 49 Ga. 596 (2); Bennett v. Wheatley, 154 Ga. 591 (5), 605 (115 S. E. 83).
Our conclusions are strengthened by a further inquiry into the history of our law on the subject under investigation. It appears that the procedure for foreclosing liens such as the one here involved was first adopted for the foreclosure of liens on steamboats, and authorized both the making of the foreclosing affidavit and the issuance of the execution to be done in the county where the boat or craft lay, and was later made applicable to the foreclosure of any lien on personalty, meaning, of course, liens other than mortgages. Section 1986 of the Code of 1863, following closely upon other sections prescribing the -method of foreclosing liens on steamboats (see § 1980 et seq.), provides: “All persons having a lien on personalty under any law in this State may enforce the same in a similar manner, by complying with the requisitions prescribed above for persons employed on steamboats, the proceedings to be in the county where the property lies.” The Code of 1863 was adopted as the law of Georgia just as was the Code of 1895. So that from an early date it was the policy of the law to permit foreclosures of liens on personalty in any county where property belonging to the defendant was situated, and to authorize the issuance of the. execution in that county. Compare Ga. L. 1868, p. 135; Ga. L. 1869, p. 135; Ga. L. 1870, p. 409. We think the practice is still permissible under the law.
It follows from what has been said that the court erred in not allowing the amendment to the affidavit of foreclosure and in dismissing the proceeding.
Judgment reversed.