2 Ga. App. 678 | Ga. Ct. App. | 1907
The plaintiff in error, Hixon, had a judgment against Henry Tunnell, dated April 15, 1906, on which execution was issued April 19, 1906, and recorded on the general execution docket May 7, 1906. In the fall of 1906 he placed the execution in the hands of the defendant in error, Callaway, then sheriff of Wilkes county, for levy. He pointed out certain'mules and a crop in the possession of the defendant in fi. fai, to be levied on. The sheriff failed to levy, and at the January term, 1907, Hixon brought petition for rule against him. The judge issued the rule, requiring the sheriff to answer instanter; and this was served upon the sheriff. The sheriff did not answer until the April term of the court; but no rule absolute was taken. At the April term the sheriff answered substantially that he had not levied, because the defendant in fi. fa had no property subject to levy. The plaintiff moved to strike the answer, because it was not. filed at the first term; the court overruled the motion; and this ruling is the basis of an exception in the record. The plaintiff traversed the answer, and evidence was introduced. There was undisputed evidence that the mules were -not subject; and the plaintiff abandoned any claim as to these. As to the crop, it appeared that the defendant in fi. fa., as a tenant of one Carlton, made crops in the year 1906, of greater value than the plaintiff’s fi. fa; On May 19, 1906, to secure the necessary supplies in the sum of $250, he executed to the Tyrone Mercantile Company a bill of sale to the growing crop. This bill of sale was recorded May 30, 1906. On account of this bill of sale the sheriff declined to levy. The court, upon the hearing, discharged the rule, and the plaintiff in fi. fa. brings error.
The other contention is based upon the Civil Code, §5425, which provides “No sheriff or other officer shall levy on any growing crop of corn, wheat, oats, rye, rice, cotton, potatoes, or any other crop usually raised or cultivated by the planters or farmers of this State, nor sell the same, until such crop shall be matured and fit to be gathered: provided this, provision shall not prevent any levying officer from levying and selling crops as heretofore practiced in cases where the debtor absconds or removes from the county or State, or from selling growing crops with the land.” It is contended that since the crop was not mature at the date of the execution of the bill- of sale, it was not subject to levy, and that therefore the lien'of the judgment did not attach. Application of general legal principles to cases respecting growing crops Iras given courts and law commentators no little trouble; indeed we are prepared to endorse heartily the frank confession of Chief Justice Simmons in the case of Bagley v. Columbus Southern Railway Co., 98 Ga. 631 (25 S. E. 638, 34 L. R. A. 286, 58 Am. St. R. 325), when, after reviewing a mass of decisions of courts and statements of text-writers, he notes the hopeless confusion and says: “Any one wishing to further entangle himself in the mystic maze of uncertainty and contradiction in which the law gov
Judgmeni reversed.