141 Ga. 411 | Ga. | 1914
Garrison & Son foreclosed a mortgage for $160 against Peeples, the plaintiff in error, by affidavit in Cobb superior court, on May 30, 1912; and on tbe sainé day the clerk issued a fi. fa. thereon, directed, as the law requires, “to all and singular the sheriffs, or their lawful deputies, and coroners of this State.” On June 19, 1912, this fi. fa. was levied on a horse by W. A. Bishop, a constable of a justice’s court, acting in this capacity and signing the levy as such constable. On the same day the defendant filed an affidavit of illegality, denying indebtedness on the mortgage; and gave bond for the forthcoming of the horse levied on. The horse was thereupon returned to him, and the constable returned the fi. fa., with the affidavit and bond, to the office of the clerk of the superior court. When the case came on to be tried in that court, the defendant moved the court to dismiss the levy, because the said constable had no authority or jurisdiction under the law to levy the execution, it being a superior-court execution directed to the sheriffs, their deputies, and coroners. This motion the court overruled, and Peeples excepted.
The court erred in refusing to dismiss the levy. “A levy by an officer without authority of law is no levy at all.” Oliver v. Warren, 124 Ga. 549, 550 (53 S. E. 100, 4 L. R. A. (N. S.) 1020, 110 Am. St. R. 188). But it is insisted that the defendant is estopped from denying the legality of the levy, having made an affidavit of ' illegality and given a bond in which the factum of the levy is
Having held that the levy should have been dismissed, what took place on the trial subsequently to the motion to dismiss was entirely nugatory; and this court will not'undertake to determine the quesr tions raised during the trial after the overruling of the motion to dismiss, which should have been sustained and the ease thereby disposed of. Judgment reversed.