McKoy v. Edwards

65 Ga. 328 | Ga. | 1880

Hawicins, Justice,

On the twenty-eighth day of June, 1878, Edwards obtained a verdict for fifty dollars principal in a justice court against McKoy. On the second day of July thereafter, W. N. Guery, constable, made an entry of no personal property upon which to levy the fi. fa., and on the same day levied the same on real estate belonging to the defendant McKoy, with full description of the property levied on except to state as whose property. McKoy filed an illegality to the same, upon the grounds :

1. That the levy was insufficient in not saying “as whose property” it was levied.

2. That he traverses the return of W. N. Guery, constable, that there was no personal property to be found upon which to levy the fi. fa., and says that he had a sufficiency of personal property in his possession on which to levy said fi. fa.

The illegality was returned to Sumter superior court, and on the trial the plaintiff in fi. fa. demurred to said illegality, and the defendant offered to amend by making Guery a party, and try with the illegality the traverse of the bailiff’s return on said fi. fa., alleging therein that the traverse was filed at the first term of the court after notice of the entry. The court refused the amendment and sustained the demurrer to the illegality, to which the defendant in fi. fa. excepts, and these are the assignments of error:

1. The execution was against but one defendant and the whole property was levied on, and there was a sufficient description of the property to pass a good title thereto at a legal sale.

2. Whether the entry of no personal property was true or false, it being on the fi. fa. an innocent purchaser at the sale would have gotten a good title.

It was a fixed rule at the common law that the return of an officer could not be traversed or demurred to ; the remedy was by suit against the officer for a false return.

Our statute has changed the common law as to returns .of a sheriff or other officer of the court, but whether it can be extended to bailiffs and officers of justice and other courts not of record, seems to be doubtful. But it is unnecessary here to decide, as this traverse is insufficient in law in this, that it fails to declare that the defendant, Mc-Koy, had personal property at the date of the return subject to levy and sale sufficient to pay said execution, or that he did not point out the real estate. The illegality should have put in issue every material element contained in the levy; that he had then personal property sufficient, not that he “ has personal property,” étc., when the traverse is filed, as he may have acquired the personalty afterwards. Also that the personal property in his possession was subject to levy and sale. He may have had personal property sufficient to pay ten times the amount and none of it be subject to levy and sale, as for instance, he may have had a homestead or exemption therein.

The return of the bailiff may be true for all that appears in the affidavit of illegality. It was too uncertain, and the court committed no error in refusing to allow the same and in dismissing the illegality.

Judgment affirmed.