65 Ga. 553 | Ga. | 1880
The plaintiff in error, as the ordinary of Early county, issued a fi. fa. against the defendants in error as the sureties of T. J. Cartledge on his bond as the county treasurer. The defendants in fi. fa. filed their affidavits of illegality thereto, and when the same came on to be heard, they then submitted a general demurrer to the fi. fa. and moved to quash the same, which demurrer was sustained, the fi.fa. quashed, and this is the ground of the pláintiff’s exception.
On the argument of the demurrer and the motion to quash, the order vacating the office of the county treasurer, and the judgment of the ordinary which preceded the issuance of the fi. fa., were read and considered by the court in connection therewith. The only question made
Under the facts stated, was the ordinary clothed with power to issue the fi. fa. against the defendants ? By §135 of the Code all offices in this state are vacated, among other things, by abandoning the office, and ceasing to perform its duties; or by the incumbent’s ceasing to be a resident of the state or county for which he was chosen. By §337 the ordinary, when sitting for county purposes, has original and exclusive jurisdiction in filling all vacancies in county offices by appointment.
Section 563 provides that when the county treasurer fails to pay any order which is entitled to payment, or other legal demand upon him, or to pay any balance in his hands to his
Applying the law to the facts in this case, the ordinary finding that the county treasurer had absconded, thereby abandoning his office and ceasing to perform its duties, declared the same vacant, and appointed a successor. He further found, under inquiry made as provided by law in §3921 of the Code, that the said county treasurer had in his hands county money to the amount of $3,669.15, and that he failed to pay the same on its being demanded ; and that properly authenticated orders had also been presented to him which he had failed to pay; he therefore issued an execution against him and his securities as he was authorized under the law to do, for the said sum of $3,669.15 so due the county, and this was done as it would have been in cases of defaulting tax collectors.
We think that the fi fa. would have been more technically correct, if it had set forth in terms that the sum-of $3,669.15 was the balance in his hands due and payable to his successor, and which he had refused to pay, and therefore the fi. fa. issued. Still we hold that it is substantially set forth, that it is legally correct and the judge erred in his judgment quashing the same. The demurrer to the fi. fa., and the order and judgment from the minutes of the court of ordinary, sitting for county purposes, which were before the judge below, are all the matters considered and disposed of by this court in this judgment.
Judgment reversed,