1 Ga. App. 266 | Ga. Ct. App. | 1907
From a confused and badly mixed record, we gather thé facts in this case to be substantially as follows; The. plaintiff in errpr took out a possessory warrant against C. M. Stone, and the constable executed the warrant by arresting the defendant and delivering him to the sheriff of the county, who, for some reason not apparent, turned him loose. The justice of the peace who issued the possessory warrant issued an execution for costs against the defendant, Stone. But the fi. fa. seems neither to have found Stone nor any of his property;- whereupon the justice of the peace, in his praiseworthy endeavor not to lose his costs, amended the execution against Stone into an execution against Payne, the
We think the court erred in overruling the exceptions to the answer of the magistrate. We think the answer should have included the proceedings in the possessory-warrant case, and also the execution for costs, in order that the court might determine whether said execution was proceeding legally against the plaintiff in the possessory-warrant case. It seems, from the record in the case, that the execution for costs was originally against the defendant, Stone, in the possessory-warrant ease, and that the execution was amended by the magistrate, over the objection of the plaintiff, so as to make it proceed against him for the costs, and was levied upon his horse. We know of no law which authorizes a magistrate, arbitrarily, to issue an execution against the plaintiff for the costs, when an execution for the costs has already been issued against the defendant. The Civil Code, §4161, seems to regulate the payment of costs in a justice’s court by the plaintiff, and is in the following words, “When an execution issued from a justice’s court shall be returned by the proper officer, with an entry thereon that there is no property of the defendant out of which satisfaction of the execution can be made, the plaintiff in execution shall be bound and liable for the costs due thereon; and if the plaintiff, upon being notified of the return and the costs being demanded of him, shall fail or refuse to pay such costs, execution therefor may issue against such plaintiff.” Because the conditions prescribed bj' this section of the code had not been complied with, the plaintiff in error, who was the plaintiff in the original possessory-warrant case, objected to the issuance of the execution against him by the justice.
The amount involved in this case is not large, and we think the