Milner v. Akin
58 Ga. 555
| Ga. | 1877
Jackson, Judge.

This was a motion to quasb an aMasfi. fa. A valid judgment bad been rendered, tod was unsatisfied. Tbe courthouse, with tbe papers, was burnt, and in tbe year 1867— tbe judgment bearing date in 1861 — Alcin, as executor of Clayton, tbe plaintiff in judgment, moved tbe court to direct tbe cleric to issue an alias fi-fa., as the first was lost or destroyed. It was levied, in 1868, upon property claimed by Milner, and Milner (McConnell, tbe defendant, being made a party also) moved to quasb this alias or copy fi. fa. in 1874 — seven years after it was issued — on tbe ground that *556Akin had not been made a party to the judgment as executor, and for other irregularities.

1. We think that this motion came too late, and that, on this ground, the court was right in overruling the motion to quash. This court has ruled, repeatedly, that such a motion should be made at an early date, or it will not be entertained. McConnell had left the county; Akin swore that he knew all about the issue of the alias or copy fi. fa. at the time it was done, and immediately after, yet he made no motion till 1871, and then, at the instance of Milner doubtless, was joined as a party — -nominally, we suppose. The land that Milner now claims was levied on in 1868, yet he delays to move against the copy fi. fa. till 1874. It is too late — 9 Ga., 275.

2. Besides, although this is called an alias fi-fa., it was issued in lieu of the lost original, and is, therefore, a copy, though it bear test in the name of a difieren! clerk, and is dated subsequently — 17 Ga., 187. The judge of the court may establish a copy of such a paper — or an alias, as it is called in the Code — either in term or vacation, upon proper application and affidavit of the applicant, or other satisfactory proof. Well, the application was made by Akin — he was the executor, the proper person to make it — the proof was satisfactory, and the order taken. If it be objected that Akin could not testify as to the record, the reply is, that the order of record recites that it appearing to the court that judgment was obtained for the amount named and the fi. fa. lost before satisfied, it is ordered that an alias be issued, etc., etc. This was a judgment of the court establishing a copy of the first fi-fa., according to 17 Ga., 187, and such copy ought to be in the name of the dead man. Akin, as executor, made the application, and was responsible for costs, and was a party to the proceeding sufficiently to make the application under the Code.

Judgment affirmed.