Puckett v. State Banking Co., 130 Ga. 586

Puckett v. State Banking Co.

130 Ga. 586 | Ga. | 1908

Lumpkin, J.

1. A rule had been issued against a constable for failing to realize the amount due on certain executions placed in his hands. He was required to show cause instanter, or as soon •as counsel could be heard, why he should not pay to the plaintiff or its attorney the amount due on- the executions. It is contended that the court could not render any judgment against him unless he made answer, but could only proceed by a rule nisi against him for contempt in not answering. A rule by the court against one of its officers is not a regular suit, but an exercise of the court’s power over its officer, to compel him to do his dutjr, or to suffer the consequences of a failure. The rule in this case did not include a requirement to show cause why he should not be attached for contempt; but the practice, as to the manner of hearing, is similar, whether the first proceeding is merely to obtain a rule absolute for the money or includes also a proceeding to attach the *589officer if it should not be paid. After being served with such a rule, to say that the court was • powerless to proceed further unless; the constable saw fit to answer, but must wait until the delinquent officer should voluntarily appear, or must institute another proceeding against him, to compel him to answer, is' not in accordance-with the law or practice in this State. When called on to answer,, he was bound to do so or to suffer the consequences of a default.. This practice was recognized in Darley v. Thomas, 41 Ga. 524.

2, 3. It was urged that the order did not peremptorily set a. day for the hearing, but that the constable was required to show cause “instanter, or as soon- as counsel can be heard;” and that this was not disobeyed until both alternatives had been exhausted. Such an order is returnable at once. While, upon proper showing, the presiding judge should allow a reasonable time for preparation and hearing, the alternative expression, “or as soon as counsel can be heard,” does not mean that the court has no power to proceed until such time as the respondent may see proper to employ an attorney and the attorney may appear and announce that he is ready to be heard. The alternative clause simply carries the rule forward, and obviates any question as to when the power of the court would be exhausted if the rule were made returnable instanter, and the hearing were not had promptly. Such an order should be given a reasonable and fair construction by the court issuing it, so as not to work oppressively, on the one hand, nor to allow a respondent to take his own time to get ready to be heard, on the other. In the present case the defendant had from the date-of the service, January 23, until February 2, to make answer, and failed to do so. The latter date was the last day of the regular term of court, and no answer having been filed or appearance made, we can not say that the presiding judge erred in proceeding to make the rule absolute at that time.

4, 5. The ground of exception which apparently sought to set up that the rule absolute was rendered by default and without evidence is not certified to be true. Nor, under the state of the record and bill of exceptions, are we called on to decide whether it. would have been proper to take the allegations or recitals. of the rule as true without the production of the fi. fas. or- other evidence-In the brief of counsel for plaintiff in error it was urged that the court was without jurisdiction and the judgment absolute void, be*590cause, before a rule nisi can issue against a constable for a failure to realize the money on executions, in his hands, there must be an application therefor in writing, and not a mere rule with no basis ■of pleading to rest upon. However this may be, no such point was raised or decided by the trial court or distinctly made in the bill of exceptions; and therefore it will not be decided by this court.

6, 7. The answer sought to be filed after the judgment had been rendered was somewhat vague and general in its character, and in some respects was clearly without merit. The executions were placed in the hands of the constable for enforcement. When ruled for failure to realize the money upon them, he set up, as one defense, that another person had foreclosed a landlord’s lien for supplies, and had placed the execution issuing thereon in the hands of the sheriff of the county; and that this lien was superior to that of the judgments forming the basis of the executions in his hands. This furnished no defense to the constable; nor was it any reason why he should fail to perform his duty, that if he made a sale some superior lien might claim the money. It was his business to proceed to sell, and if other liens or fi. fas. contested for the proceeds, that was no concern of his.

He alleged that he could not read, that his daughter undertook to read the rule nisi to him, and that she misread the word “instanter.” How she read it he does not state; nor how the way in which she read it caused him to- wait for nearly two weeks before employing counsel or attempting to prepare an answer. After considering the 'entire motion and the proposed answer, we can not ■say that the presiding judge committed error in refusing to set aside the judgment which had been rendered.

Judgment affirmed.

All -the Justices concur.