95 Ga. 50 | Ga. | 1894
It is unnecessary to deal specifically with the numerous questions made in this ease. It turns mainly upon the proposition announced in the first head-note. Section 3648 of the code provides, in substance, among other things, that whenever any process issuing from a superior court is levied on personal property of a perishable nature, or which is liable to deteriorate in value from keeping, or is expensive to keep, and it remains in the hands of the levying' officer because of a failure by the defendant to replevy the same, “ upon the facts being made plainly to appear to the judge of the superior court, or to the ordinary of the county in which such levy is made, during the absence of the judge of said superior court,” it shall be his duty to order a sale of the property; provided, “ that no judicial officer shall grant any order for the sale of personal property where the defendant in fi. fa. or other process, or his attorney, has not had at least two days’ notice of applicant’s intention • to apply for such order, which notice shall specify the time and place of hearing.”
In view of the provisions of section 3648, recited in the beginning of this opinion, it cannot be doubted that even if the order had been granted by an officer vested with full authority in the premises, it should be made to affirmatively appear that the two days’ notice of the applicant’s intention to apply for the order of sale was duly given, unless the case be one which falls within some of the exceptions specified in that section where, in the sound discretion of the judge, a sale may be ordered without notice. Judgment reversed.