Vining v. Officers of Court

86 Ga. 127 | Ga. | 1890

Blandford, Justice.

This was an execution issued by the clerk of the superior court in favor of the officers of- coui’t against the plaintifi in error, which was levied upon certain of his property. The defendant in the court below moved to dismiss the levy, .upon the grouud that the levying officer, being interested as a plaintiff, was incompetent to make it. The court overruled this motion, and his .ruling is excepted to. We think the court, did right. It has been the invariable rule for the sheriff, or other levying officer, to levy any execution for costs, whether he be interested in the costs or not. We know of no instance to the contrary. Indeed, the-very levy of any execution, although not in favor of the levying officer, would give such officer a right to costs. Claimant also moved to rule out the execution upon the ground that it was levied by Archer, the sheriff, which motion was also denied. He further moved to dismiss the levy upon the ground that the execution did not follow the judgment in this the judgment was in favor of the officers of court, and the ft. fa. was in favor' of the offícerá of court and one Yancy and others, who claimed witness fees. This- motion was also overruled, and movant excepted. Ye think the levy was properly made by Archer, the sheriff; and that it was perfectly competent for the clerk to tax costs in a case which had been pending in court, whether those costs consisted of witness fees, fees due the clerk, sheriff, jurors or others. All were properly the costs in that case. Such has been the established rule from time immemorial in this State.

Claimant then moved to dismiss the levy upon the following grounds: (1) It having appeared from the evidence that the property levied upon was homestead property, the same could not be levied upon without an affidavit having been filed by plaintiff, stating that the debt upon, which the execution was founded was one from which the homestead was not exempt; it being admitted that no such affidavit had been filed. (2) The evidence showed that the property levied on was homestead property, and therefore a trust estate ; and it could not be levied on and sold under the ft. fa., but plaintiff should commence equitable proceedings in order to condemn the trust estate. The court overruled this motion, and claimant excepted. We think this ruling of the court is in accord with the decision in this same case, which will be found in 82 Ga. 222. Only the plaintiff’s aliquot part, unaffected by the homestead, in the property levied on, was subject to the execution, not the whole property; and such was the verdict of the jury. In our opinion the verdict of the jury was right; and the judgment of the court below is

Affirmed.