115 Ga. 619 | Ga. | 1902
Peyton Clay obtained a judgment against Parker, and the execution issued thereon was levied upon a tract of land; and on July 3, 1899, Emma Hatcher and others interposed a claim to the same. Upon the trial of the clafta case the claimants offered an amendment to the joinder of issue, in which they set up that Parker, the defendant in execution, died in 1879; that there never had been any administration on his estate, and that at the time of the levy in the present case his estate was unrepresented; that Peyton Clay, the plaintiff in execution, died on the 11th day of November, 1880; that E. W. Clay was appointed his administrator in January, 1881, and that letters of administration were issued to him, dated February 17,1881; that he fully administered the estate and was dismissed as administrator in 1886, at the May term of the court of ordinary; that the estate of Peyton Clay had no representation from the time of the dismissal of E. W. Clay until after the levy in the present case; and that between these dates there was no one authorized to direct the collection of the execution, and all entries made on the execution between these dates are void. The court upon demurrer struck this amendment, and to-this ruling the claimants excepted. The case proceeded to trial, at which it appeared that Peyton Clay obtained a judgment in the superior court against John F. Parker on October 5,1874, and that’ execution issued thereon October 26, 1874. The following entries appear upon the execution, signed by the sheriff: February 24,1875, levy upon land ; September 7,1875, receipt for costs paid by the
If the sheriff had no authority to make entries upon the execution between the date of the dismissal of E. W. Clay as administrator of the estate of Peyton Clay and the appointment of Lord as administrator upon that estate, which was after the levy in the present case, according to the averments in the amendment, then the execution would be dormant for the reason that the other entries rvere not made within seven years from the date of the last entry made during the time that E. W. Clay was in office as administrator. It is contended that, as there was no administrator during this period, there was no person authorized to control or direct the progress of the execution, and that the sheriff had no authority to make entries thereon except at the special instance and request of some one who owned or controlled the execution. What effect has the death of the parties to an execution, or either of them, upon the writ ? According to the provisions of the statute 29 Car. II, c. 3, § 16, which was of force in England at the time of our adopting statute, an execution which is delivered to the sheriff in the lifetime of the defendant may be levied upon his goods and chattels
The controlling question in the case and the one which was stressed in the written argument filed for the plaintiffs in error is, what effect has the death of the plaintiff in execution upon the writ when it was issued during his lifetime ? At common law the death of the plaintiff did not abate the writ, but it was the duty of the officer, notwithstanding such death, to levy the writ., See 8 Enc. P. & P. 499, and numerous cases cited in the notes; 1 Freeman, Ex. (3d ed.) § 37; Com. v. Whitney, 10 Pick. 434. In Rogers v. Truett, 73 Ga. 386, where the claimant tendered an issue that the plaintiff in execution had died before the levy, and the same was stricken upon demurrer, the judgment was affirmed by this court, and it was held that after the judgment had been obtained and execution issued thereon, the death of the plaintiff in execution would not interfere with the progress of the execution, but that the administrator or executor of the plaintiff in execution might have the same levied; and it was said that possibly his heirs at law, or any one else interested in the execution as transferee or otherwise, might cause a levy to be -made. It was also said that, after the property levied on was claimed, some one who was entitled to control the execution should be made a party to the claim
When an execution has been issued during the lifetime of the plaintiff in execution and delivered to the sheriff, it constitutes a •command to the sheriff to seize the property of the defendant in
Judgment affirmed.