15 Ga. App. 167 | Ga. Ct. App. | 1914
A common-law execution from the city court of Waynesboro against Henry ■ Hartshorn and in favor of the Bank of Gough, was levied on certain personal property of the defendant by one C. E. Penroe, who signed the entry of levy as “special deputy sheriff Burke county.” The defendant filed a forthcoming bond, payable to the sheriff of Burke county, which recited the factum of the levy by the said sheriff “through his deputy,” and described the property levied upon. Subsequently the defendant filed an affidavit of illegality, on several grounds, all of which, however, were abandoned on the trial, except the first ground, which was as follows: “That the levy in said case was not made by an officer authorized to levy an execution issued from the city court of Waynesboro, but was levied by C. E. Penroe, constable of the 72d dist., G. M., Burke county.” On the issue thus raised the case proceeded to trial, and, in addition to the introduction of the fi. fa., with the entry of levy thereon, and the forthcoming bond aforesaid, the following testimony was adduced as to the authority of the levying officer: C. E. Penroe himself testified for the defendant as follows: “I am constable for the 72d district, G. M., Burke county, Georgia. I made the levy as deputy sheriff. Mr. Story, the sheriff, sent me the execution and directed me to levy it, and I did so. I was sworn in some two or three years ago as a special deputy, but never gave any bond as deputy sheriff, and was not specially sworn for the purpose of making the levy in said case. I was not under bond as constable, but was acting as constable. I did not give bond as constable or deputy sheriff. Whenever Mr. Story would send me a paper to serve, I would do so as deputy sheriff.” The sheriff,
The act establishing the city court of Waynesboro (Acts of 1903, p. 174), provides, in section 17, “that the sheriff of Burke county and his deputies shall be, by virtue of their offices, sheriff and deputy sheriffs of the city court of Waynesboro,” and further provides that “before entering on the discharge of the duties of his office, said sheriff shall execute a bond, with good security, in the sum of one thousand dollars, for the faithful discharge of the duties of his office.” Section 18 provides “that the duties and liabilities attached to the office of the clerk of the superior court and to the office of sheriff of Burke county shall be attached to the office of clerk of the city court of Waynesboro, and to the office of sheriff of the city court of Waynesboro, respectively.” Section 20 provides “that the process to writs” shall be attested in the name of the judge of the city court, “and be directed to and served by the sheriff of the city court of Waynesboro or his deputy.” Section 23 provides “that all executions issuing from said court shall be attested in the name of the judge and signed by the clerk or his deputy, and directed to the sheriff of the city court of Waynesboro and his deputies.” Section 26 provides “that attachments in said court returnable to said city court shall be directed to the sheriff of the city court of Waynesboro or his deputies, and to all and singular the sheriffs and constables of this State.” The act of 1903, supra, was amended in 1904 (Acts of 1904, p. 227-37), and in section 8 of the amendment the judge of the city court is empowered to appoint a special bailiff for the court whenever the business of the court may require it, who shall take an oath of office and give bond in the sum of $1,000 for the faithful discharge of his duties. Nothing is there said as to the appointment of a special deputy sheriff of the court.
It does not appear in the instant case that C. E. Penroe "special deputy sheriff, Burke county," was ever appointed and qualified as a deputy sheriff of the city court of Waynesboro, or as a special bailiff of that court, nor does it appear that he even attempted to sign the entry of levy as an officer of the city court of Waynesboro, but he signed it as a deputy of the sheriff of Burke county, acting as sheriff of Burke county, and not as sheriff of the city court of Waynesboro. It does not appear from the record in this case that the sheriff of Burke county had ever himself qualified as sheriff of the city court of Waynesboro by giving the bond required by the act creating that court, and, so far as the entry made by his pretended deputy discloses, and so far as is revealed by the oral evidence in the case, the sheriff of Burke county and his deputies as such sheriff did not assume to act as officers of the city court of Waynesboro. Georgia, Florida & Alabama Ry. Co. v. Anderson, 12 Ga. App. 117 (76 S. E. 1056). In Smith v. Davis, supra, it
It appears, from the only testimony adduced at the trial, that the officer who made the questioned levy was constable for the 72d district, G. M., of Burke county, though not under bond, and that, two or three years prior to the date of the entry of levy, he was sworn in as a special deputy of Burke county, Georgia (not as deputy sheriff of the city court of Waynesboro), but gave no bond as deputy, and occasionally served processes and levied executions for the sheriff of Burke county. If he was a regularly acting constable of the county, he would be a de facto constable, notwithstanding his failure to give bond, and as such constable he is prohibited by express statute (Civil Code, § 4688) from acting as a deputy sheriff. It is urged by counsel for defendant in error that this officer might be considered as a de facto deputy sheriff rather than as a constable, since he had not given bond in either capacity and had acted m eacu, and that the burden was on the defendant in fi.
It is contended that the defendant in fi. fa. can not question the authority of the officer who made the levy on his property, since the defendant executed a forthcoming bond for the property, in which he recited the fact of the levy. This view is insisted upon on the authority of Smith v. Davis, 3 Ga. App. 419 (60 S. E. 199), in which this court declared that where parties defendant gave a forthcoming bond and thereby secured possession of the property levied upon, they were estopped from thereafter denying the authority of the deputy sheriff who made the levy. See also Kinney v. Avery, 14 Ga. App. 180 (80 S. E. 663). As to this it suffices to say that this court is bound by the decisions of the Supreme Court as precedents, and that the recent ruling of the Supreme Court in Peeples v. Garrison, 141 Ga. 411 (81 S. E. 116), is controlling, and definitely determines that the estoppel arising ffrom the giving of a forthcoming bond, when a levy is made upon personalty and ail affidavit of illegality is interposed, “does not extend to the validity of the process nor to the authority of the officer to make the levy,” and the defendant in fi. fa. can at the trial make either defense.
Judgment reversed.