Long v. Wight

82 Ga. 431 | Ga. | 1889

Simmons, Justice.

The only ground insisted on before us for a reversal of the court below was, that the court erred in holding that this judgment was not dormant. The judgment was dated May 16th, 1874. On it was entered the receipt of $50, December 11th, 1874; also an entry of levy on lot of land number 95 in the 19th district, as the property of M. W. Long, dated March 26th, 1881, and signed, “F. J. Shores, constable 1005 district, Gr. M.” There was also another levy, dated January 13th, 1886. It was contended by the plaintiff in error that the levy made by Shores, the constable of the 1005 district, was illegal and void, because levied on a lot of land which did not belong at the time to the defendant in fi. fa., and because there was no entry on th % fi-fa., before this levy on the land was made, that no personal property was to be found.

The rule seems to be, according to the decisions rendered by this court, that any bona fide action of the plaintiff' which shows that he intends to keep the judgment alive, will prevent its dormancy. Smith vs. Rust, 79 Ga. 519; Gholston vs. O’Kelly, 81 Ga. 19. As far as appears from this record, the levy was a bona fide attempt on the part of the plaintiff in fi. fa. to collect the amount of the execution. It shows action on his part to collect his judgment, and this, as we have seen by the above citations, is sufficient to prevent dormancy of the judgment.

But it is contended by the counsel for the plaintiff' in error that the evidence shows that the defendant did not own the lot of land at the time it was levied on, and that there was no entry of “no personal property to be found,” made prior to the levy on the land. We do not think that for these reasons the levy was void. It was made, it is true, by the constable of a different district from that in which the defendant appears to have resided, but he was “an officer authorized to execute and return the same.” Code, §2914. And although he may have made a mistake in levying upon land when there was personal property, or before the entry of no personal property to be found was made on the execution, still, in our opinion, it would be a sufficient entry to prevent the dormancy of the judgment. In the case of Prendergast vs. Wiseman, 80 Ga. 419, it was heldthat “a sheriff’s return upon a fi. fa., repeated within each period of seven years, to the effect that he knows of no property on which to levy the fi. fa., prevents the judgment from becoming dormant. And this is so whether the return be true or false, and whether the counsel for plaintiff in fi. fa. knows of property subject to levy or not.” Bleckley, C. J., in the opinion of the court, says : “The fact of an entry by the proper officer, and not the truth of it, is the material matter with respect to keeping the fi. fa. from becoming dormant. If the officer make a false return, and thereby any person be injured, the redress for the injury is against the officer ; and whether it be sought or not, the effect of the return in keeping ■ the fi. fa. alive is the same.”

Judgment affirmed.