113 Ga. 349 | Ga. | 1901
Reynolds sued out a distress warrant against Howard, his tenant, and had it levied upon the latter’s crop. Howard, without replevying the property, filed a counter-affidavit denying the grounds upon which the distress warrant issued. Trial
The cross-bill of exceptions alleges that it was error to adjudge that the tenant’s share of the fund in the hands of the sheriff should be charged with any part of the sheriff’s costs and expenses. This we have already discussed. The court had no authority to charge the tenant or the tenant’s portion of the fund with any part of such costs and expenses, the tenant having been adjudged guiltless of any wrong or fault. In our opinion the court should have applied to-the payment of the costs and expenses that portion of the fund which was the landlord’s, and then, if that was not sufficient, have rendered a judgment' in favor of the sheriff and against the landlord for the balance. See Robertson v. Smith, 37 Ga. 604. The tenant was entitled to the whole of his share of the fund, and his just demands could not be satisfied by a judgment in his favor against the landlord. The record discloses that, while the crop was in the possession of the sheriff, he employed the tenant and his children to assist in gathering it, paying the tenant therefor a certain amount. This amount was deducted by the judgment of the court from the amount ruled to be due to the tenant. Accordingly the tenant was charged with this part of the sheriff’s expenses, and was not even given, for it, a judgment against the landlord. To this also the tenant excepts, and we think the exception well taken. As before stated, the landlord was liable for all the costs and expenses, and the mere fact that the sheriff, while he had the crop in his possession, employed the tenant to gather a part of it would not relieve the landlord of his liability or authorize the judge to
Judgment on each hill of exceptions reversed.