Lapsley v. Georgia Loan, Savings & Banking Co.

99 Ga. 459 | Ga. | 1896

Atkinson, Justice.

Prior to the passage of the act of 1869, which is incorporated in section 4142 of the code, executions issued from justices’ courts, being addressed to all and singular the constables of the county within which they were issued, might be well executed within his own bailiwick by any constable in any district within the county; for by section 47 8 of the code it was made the duty of constables “to execute and return all warrants, summons, executions, and other process to them directed by lawful authority.” The act of 1869, to which reference has above been made, was entitled, “An act to extend the jurisdiction of constables in the several counties in this State.” It provided, “That from and after the passage of this act, it shall be lawful for any constable of the several counties of this State to execute and return any process issued by a justice of the peace or notary public of said counties, but he shall Return the said process to a justice of the peace residing in the militia district where the defendant or defendants resided at the time of issuing said process.” The effect of this act was to extend the territorial area of the constable’s jurisdiction so as to enable him to execute process of magistrates’ courts in districts other than his own. So that, possessing authority, before the passage of the act, to execute such process issued from any justice’s court in the county within the limits of his own bailiwick, the effect of the act was to enable him to execute such process in any bailiwick within the limits of the county. The execution of this process, in so far as levy and seizure of the property is concerned, is consistent with the other provisions of the code prescribing the duties of the constable; but when it comes to the sale of the property seized under such an execution, the statute requires that the place of sale shall be at the court ground of the bailiwick of the constable. Code, §§4172, 4172(a). The case of Divine v. Bailey, 62 Ga. 235, is readily distinguishable from the one now under consideration, for the reason that in that case the question was upon the validity of the sale. The seizure was made under an execution issued from one justice’s court by the constable of another, who undertook to sell the property at the court ground of yet another militia district. So that, while in so far as the mere seizure of the property was concerned he was acting within the limits of his constabulary authority, when he undertook to effectuate the seizure by making a sale he selected a time and place different from that prescribed by law. This court could, and did, therefore, in that case properly hold that the sale was void. The question under consideration in that case was whether the sale was void, and the conclusion which we reach in the present case is in perfect harmony with the doctrine applied in that. ¥e are not inclined to agree altogether with the line of reasoning adopted by the court in stating the considerations which induced its conclusions, and are, therefore, not inclined to extend the doctrine of that case beyond the necessary limits of the question expressly decided by it. In the present case an execution was issued from one district, which was levied upon land in the district from which the judgment issued, by a constable residing in another district, and a claim interposed by a third person. The question, therefore, is upon the validity of a levy, and not upon the validity of a sale.

The court, for the reasons above indicated, did not err in overruling the motion to dismiss the levy.

Judgment affirmed.