116 Ga. 748 | Ga. | 1902
At the instance of C. D. McDonald, a rule was issued against N. W. Woodward, as constable of the 498th district, G. M., of Henry county, calling upon him to show cause why the money had not been made on two executions in favor of McDonald, which had been placed in his hands for enforcement. An answer was filed by Woodward, in which he set up the following matters of defense: Both of these executions were duly levied on four bales of cotton as the property of the defendant in fi: fa., and the cotton was advertised for sale on the first Friday in November, 1901, which was' the earliest day upon which it could legally have been sold. Some time prior to that date, the attorney of the defendant in fi. fa. served upon the constable written notice to the effect that
A hearing of the case was had in the superior court, and the judge passed an order making the rule against the constable absolute, on the ground that he had “ failed to show any lawful cause why he had not made the money on said fi. fas.” To this judgment exception was taken. We are of the opinion that it should be affirmed. There haying been no traverse filed to the answer of
Clearly, the trial judge could not be expected to take judicial cognizance of the pendency of proceedings in bankruptcy instituted against the defendant in fi. fa., or of the action taken by the Federal court in regard thereto. Nor can the order set forth in the
It is to be observed that while the bankrupt act of 1867, with regard to which the cases last above cited were decided, provided merely that mesne process against the property of a bankrupt should be dissolved, if sought to be enforced within four months next preceding the commencement of bankruptcy proceedings, the act of 1898 (§67/) declares that “all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt.” If the effect of this provision in the later act is to render void a levy made under final process issued upon a judgment obtained in a State court within four months prior to the commencement of bankruptcy proceedings, it would seem illogical to hold it to be the duty of the levying officer to bring to sale the property levied on, since the process he was called upon to execute would itself no longer be operative. Accordingly, if the officer voluntarily surrendered possession of the property to the trustee in bankruptcy, he could hardly be said to be in contempt of the State court, or liable to the plaintiff in fi. fa., for not enforcing its thus -nullified process. We are
Judgment affirmed.