102 Ga. 694 | Ga. | 1897
The American ■ Mortgage Company of Scotland Limited obtained a judgment against Jinks on the 26th day of February, 1890, for $1,200 principal, $226.-28 interest, $142-.62 attorneys’ fees, and $11.75 costs. On October 2, 1890, an execution issued on this judgment was levied upon certain land as the property of the defendent in execution. On the 5th day of December, .1893, the sheriff made the following entry upon the execution: “After duly advertising the within-described levied lands according to law in the Butler Herald newspaper, the official gazette of the county, I this day exposed the same to sale before the court-house door in the town of Butler, Taylor county, Georgia, within the legal hours of sale, and knocked the same off to Austin Corbin for the sum of nineteen hundred dollars, he being the highest and best bidder. This 5th day of December, 1893. C. A. J. Pope, sheriff.”
On March 5, 1894, the sheriff levied the execution again upon a part of the property described in the former levy, as well as other property of the defendant. To this levy the defendant interposed an affidavit of illegality, setting up that prior to December 5, 1893, he had paid in cash upon the execution the sum of five hundred dollars, and that this sum, together with the amount named in the entry of the sheriff relating to the former levy, was more than sufficient to discharge the execution. Upon the trial of the issue formed upon this affidavit of illegality, the judge directed a verdict in favor of the plaintiff in execution. In this we think that he erred.
The entry of a sheriff on process in his hands is generally not traversable. Higgs v. Huson, 8 Ga. 317, 321. Such an entry may be traversed, however, for fraud or collusion. Tillman v. Davis, 28 Ga. 494; Sprinz v. Frank, 81 Ga. 162. The code “widened the laws of traverse as to returns of service.” Civil Code, §4988; Dozier v. Lamb, 59 Ga. 461. But-the re