80 Ga. 222 | Ga. | 1887
A rule was issued against David Reeves, constable, calling on him to show cause why he should not be attached for contempt, because he had failed to collect the money on a certain execution placed in his hands as constable for collection. He answered the rule; his answer was traversed; and the case was submitted to the judge to pass-upon the questions of law and fact, without the intervention of a jury, upon an agreed statement of the facts. The judge found against the constable and made the rule absolute, and the plaintiff in error excepted, and assigns the same as error.
We think the court did right. The execution was placed in the constable’s hands in sufficient time to make the money. Instead of doing so, he accepted a pretended affidavit of illegality, not sworn to, and did not take any forthcoming bond. The acceptance of said pretended affidavit of illegality postponed the sale over and beyond the time in which he was ordered to make the money. Whenever an execution is placed in the hands of an officer for collection, and he fails or neglects to collect the same in the timé prescribed by the law, the law presumes that the plaintiff was injured, and upon a rule against him to show cause for contempt, the burden of proof is upon the officer to show that the plaintiff was not injured. He can do
In this case the constable did not show, nor attempt,to show, in his answer to the rule, that th efi. fa. was illegal, or that the j udgment was void, or that the property levied on was not the property of the defendant in f. fa., nor any other sufficient ground which would excuse him under the law; but he simply attached to his answer the affidavit of illegality which was filed subsequent to the pretended affidavit which stopped the first sale. There was no evidence introduced to show to the court trying the case, that either of the grounds of the affidavit of illegality was true. It is not sufficient to excuse him, simply to attach the affidavit of illegality, without establishing or attempting to establish the truth of the grounds taken in the affidavit. If he had shown that either one of the grounds was true, then, of course, the rule ought not to have been made absolute; but as.he did not show this, there was no error in the court in making the rule absolute.
Judgment affirmed.
