65 Ga. 64 | Ga. | 1880
Under our repeated rulings, the first grant of a new trial will not be reversed by this court, unless some con
It is argued that the act of 1876—Sup. to Code, §129 et seq.—restricts the sheriff when he makes the levy to make the entry, because that act declares, “ It shall be lawful for the sheriff or his deputy in any court of this state to levy and collect a tax fi. fa. for any amount: Provided, that when said tax fi. fa. is for one hundred dollars or less, the same fee shall be paid as is now allowed by law to constables or bailiffs; and all other proceedings as to levy and time and place of advertisement and sale, shall be the same as heretofore governed such levy, advertisement and. sale by bailiffs or constables and the proceeding as to levy required the constable first to exhaust the personalty under section 3645 of the Code. The case in 11 Ga., 88—Gladney vs. Deavors—is c-ited to show that in tax cases such entry must be made. That decision rested on the tax act of 1804, Cobb’s Digest, 1048; and the question is this, is that act still of force, and the decision in 11 Ga., 88, still the law on this point ? It will be observed that under that act the tax collector could not'
We are not prepared, therefore, to say that the court erred in holding that the personalty need not be first exhausted and entry of that fact made on the fi. fa. before a sheriff can levy on land to pay taxes, though the tax execution be for a sum less than one hundred dollars; and this being the first grant of a new trial, we shall not control the discretion of the presiding judge in granting it.
Indeed the point is controlled by Smith vs. Jones, 40 Ga., 39, where it was held that to collect a tax fi. fa. for city taxes, the marshal need not exhaust personalty and make the entry; and If such be the rule as to city taxes, much more ought it to be as to state taxes. And so the opinion there construes the above cited sections of the Code, and covers fully this point.
Judgment affirmed.