| Ga. | Feb 7, 1885
Section 4260 of the Code exacts that, “ In cases of interpleader or otherwise, where the real contestant is not the opposite party on the record, notice shall be .given to such real contestant in addition to the copy served as above.”
The state in this case is not the opposite party on the record, so far as the prayer for subpoena is concerned, or the filing of any answer by her in writing would make her a party technically to the bill for injunction; yet she is the real contestant. It is the levy of an execution in her favor which the bil.'s seek to enjoin, and therefore she is the only real contestant. She could not well be made a party by subpoena. The governor is her chief executive officer, and it is his duty to enforce process if necessary, and he cannot-be made a party in that way; but, nevertheless, it is a case which the state contests, in which she seeks to collect an execution which is her property alone; the sheriff, as the levying officer, is a necessary party of record, because he is enforcing an illegal execution of the state on the property of her citizens ; and the complainants were right in mdicing him a party defendant of record, and praying the writ to issue, enjoining him. But all this merely shows that, though a necessary party, he is not the real contestant, because the money due on the executions will be the state’s, not his; and the sole interest he has is his costs, which will be increased by the per cent he gets on the proceeds of sale, if the state succeeds in defeating the injunction. Thus
The chancellor below required notice to answer the restraining order upon the attorney general, in view of the obvious propriety of not enjoining the state’s execution without notice to the officer of the state, whose duty it is to defend cases in which the state is interested, and through-whom it is made the governor’s duty to defend her cases. If the chancellor required the complainants to give notice below before he would act, much more, by the mandate of the law in section 4260, is it the duty of this court to require service of such notice upon that officer here, or before the case can be heard'here, in order to confer jurisdiction on this court.
The only notice which the statute contemplates anywhere is service of the bill of exceptions by copy thereof, or the waiver thereof entered thereon.
No such service appears here, and indeed no notice of any sort to the attorney general or other officer of the state. It follows, necessarily, that the real contestant not having been served at all, the two cases must be dismissed.
The only reply to the motion by counsel for plaintiffs in error here was that, in the case of Mayo, sheriff, vs. Wilson, 66 Ga., 408, this court held that the governor of the state was not a necessary party to the bill, and could not be made a party. This ruling was made on demurrer to the bill, on the ground that he was a necessary party, and the decision is that the governor could not be made one, for the reason given above in this opinion, that his great . executive duty is to execute the process of the courts through the subordinate officers of the law, and this high office would not consist with service on himself of process which he himself was to see executed properly in the last resort. At the same time and under the same head, it was held in the Mayo case, that it was his duty to defend, by the attorney general, state cases, .expressly by statute,
¡So in these cases, the attorney general appeared as the legal adviser and representative of the governor, for all practical purposes, and in the only way in which the chief magistrate could well appear for the state; and so necessary was his appearance deemed by the chancellor that he required notice to be served on him to attend the trial of the application for injunction below. So that the Mayo case is authority for the ruling we make now in these cases. That case rules that, for all practical purposes, the governor was in that case by his attorney general, and therefore was a party of record so far as he could be made one. If so, it furnishes only an additional reason for service of a bill of exceptions on the man who appeared for the state in these cases, and brings him almost, if not entirely, within the law requiring service on the opposite party to the record. Mayo, the sheriff, brought that case here, and of course no question of service on the attorney general was made; for Mayo’s side was the state’s side. Had Wilson brought that case here, and had not served the attorney general or the state, through some proper officer, with the bill of exceptions, and had a motion been made to dismiss it, it would have been and must have been dismissed, as these cases are.
Writs of error dismissed. ■