99 Ga. 603 | Ga. | 1896
This case turned upon the question whether or not an. execution issued from a superior court was dormant. In our opinion, the trial judge correctly held that it was so.
1, 2. Among other things, it was claimed that the execution was saved from dormancy by an entry thereon made by the cleric of the superior court, acknowledging the receipt of the clerk’s and sheriff’s costs. If this entry could properly be treated as one made by an officer authorized by law to “execute and return” the process, the execution would not be dormant. We do not think, however, clerks of the superior courts are such officers. Although, under-section 268, par. 2, of the code, they have authority to “receive the amounts of all costs due in the court of which they are clerks,” they are not collecting officers. They have no authority to levy executions, and we know of no statute requiring any “actings and doings” on their part, with reference to the enforcement of this form of process, or imposing upon them any duty as to making “returns”' concerning the same. If a party voluntarily pays to the clerk the costs due upon an execution, he may lawfully receive the money, and there is no impropriety in his entering the fact of such payment upon the execution; but still, his entry cannot properly be regarded as that of an officer like the sheriff, who is specially charged with the duty of executing and returning the process.
This court, in the case of Gholston v. O’Kelley, 81 Ga. 19, held that a receipt for costs entered upon an execution by a justice of the peace was such an entry as would constitute a new point from which the dormancy statute would begin to run, but that ruling was put expressly upon the-
. 3. Another effort was made to save from dormancy the execution with which we are now dealing, by endeavoring to obtain an order authorizing and directing a sheriff, who had gone out of office,‘to make upon the execution a nunc pro tunc entry of a levy alleged to have been made by him at a time when he was in office, and when the judgment was not dormant. The trial court was of the opinion that, conceding the facts to be as stated, an entry of this kind Avould not accomplish the desired end. This was unquestionably the correct view to take of the matter. 'Nunc pro iimc entries upon executions doubtless may, for a proper purpose, oftentimes be made; but they would be entirely unavailing as a means of saving from dormancy an execution which had already lost its lien. Such entries only as are actually made — not such as might, or ought to, have been made — will save an execution from dormancy. As to this the language of our statute is plain and unequivocal. By its express terms, the execution becomes dormant if “seven years have expired from the time of the last entry upon the execution, made by an officer authorized to execute and return the same.” Omission to make proper entries, within the time prescribed by law, is precisely what renders an execution dormant. After the time limited has wholly expired, the plaintiff in execution cannot, by entries mine pro iimc, or otherwise, defeat the operation of the statute.
4. The mere making of partial payments on the judgment debt to the plaintiff in execution, and taking receipts
Judgment affirmed.