Rountree v. Jones

124 Ga. 395 | Ga. | 1905

EvaNS, J.

(After stating the facts.) It will appear from the foregoing recitals that more than seven years had elapsed since the rendition of the different judgments before they were entered on tbe execution docket of the superior court of Brooks county. The judgments were therefore dormant. “In order to prevent dormancy of a judgment, it is required that an execution shall be issued on such judgment and placed upon the execution docket, within a period of seven years from the date of the rendition of the judgment.” Easterlin v. Sewing Machine Co., 115 Ga. 305; Civil Code, §3761. When this section of the code was considered in Hollis v. Lamb, 114 Ga. 740, it was held that the act of 1885 ' (which is codified in §3761) “made practically but one change in the law, . . and that was that the entries made on an execution by the officer which were sufficient to prevent its dormancy should be entered upon the execution docket of the court from which it issued,” and that dormancy could also be prevented, without compliance with the terms of the act of 1885, if the plaintiff did any public act-indicating an active and bona fide attempt to enforce his execution against the property of the defendant within the stated period. Counsel for the plaintiff in error frankly concedes that the entry of the executions on the “general execution docket” does not meet the requirement of the Civil Code, §3761, which requires that an execution and the entries thereon shall be placed “upon the execution docket of the court from which the same issued;” but he. does contend that the record of the executions and the entries thereon upon the “general execution docket” were such a public act as would, between the parties, arrest the running of the dormancy statute. This identical question was before this court in the case of Columbus Fertilizer Co. v. Hanks, 119 Ga. 950, and was decided by a divided court. In the opinion of the majority the ruling was announced that a judgment will not be kept in life and the running of the dormancy statute arrested by a record of an execution and its entries on the general execution docket; and further, than an entry on the general execution docket was not such a public act as would prevent the judgment from becoming dormant. The arguments supporting both the majority opinion and the dissent were forcibly presented; and the writer, after much deliberation, believes the conclusion reached by Chief Justice Simmons in the majority opinion states the correct view on this subject.

Plaintiff in error further contends that the executions were not dormant, because of the effort of the plaintiff to subject this land to the lien of his fi. fas. by an equitable proceeding which terminated in an adverse decree in 1894. In support of this contention he refers to the following recital of fact in the bill of exceptions: “It was admitted that a bill in equity was filed by the plaintiffs, in which it was sought to subject this lot, together with other lands, to several fi. fas. of Eountree & Co. and A. J. Eountree & Son, and that by decree rendered at the May adj. term, 1894, this lot was held to be exempt from levy and sale at that time, because same was homesteaded.” If this quoted extract had appeared in the bill of exceptions with nothing to indicate the contrary, it might well be assumed that the fi. fas. therein referred -to were the same as the ones which are concerned in the present suit. However, the bill of exceptions shows that the definite article “the,” which was therein inserted immediately preceding the words “several fi. fas. of Eountree & Co. and A. J. Eountree & Son,” was stricken. No other inference can be drawn from the striking of this single word, so definite in its application, than that the fi. fas. in the present suit are not identical with any of those involved in the former equitable litigation. Had their identity appeared, perhaps this would have amounted to such an act of a public nature as would have avoided dormancy.

Something was said in the briefs about a pending claim case which would save the executions from dormancy.* The only hint about a claim case was a reference, in the answer, to a claim case which was pending in the Supreme Court. The record before us does not disclose that the fi. fas. now under consideration were those under which an attempt was made to subject other land of the defendants in execution, or that the litigation arose within seven years from the date of the judgments. Hence this reference to a claim case made in the defendant’s answer, standing alone, does not constitute an admission that the plaintiff took any steps towards enforcing the executions which had the effect of arresting the dormancy statute.

Judgment affirmed.

All the Justices concur, except Candler and Lumphin, JJ., dissenting. CANDLER, J.

I can add nothing to what was said by Mr. Justice Turner in his dissenting opinion in the case of Columbus Fertilizer Co. v. Hanks, 119 Ga. 955. With the views there expressed I was then, and am still, in accord; and I am therefore compelled to dissent from the judgment of the majority in the present ease.