Hathaway v. Smith , 117 Ga. 946 ( 1903 )

Lamar, J.

The petition was, no doubt, subject to special demurrer ; for while very full in its statement of injuries inflicted on the plaintiff, it is extremely meager as to the facts on which the defendants’ liability is based. Still, it does positively aver that no affidavit was made, and that the execution was collusively issued for the purpose of exacting costs. -If, therefore, the justice affixed his signature to the jurat when no affidavit had been made, and issued an execution when there had in fact been no appeal to him as a judicial officer, he was not acting judicially, but for his own purposes. And even if he had been acting judicially, he may have been liable for acts done maliciously or for his own benefit (Gault v. Wallis, 53 Ga. 675 (2); Calhoun v. Little, 106 Ga. 342), the notice required by the Civil Code, §4055, having been given to the justice. If the constable was a party to an illegal proceeding to issue an execution as a means of exacting costs, partly for his own benefit, he would of course be liable for trespass and damages arising from the levy. Gunn v. Pattishal, 48 Ga. 405.

While there is elsewhere a conflict of decisions, in Georgia an affidavit is required to be signed by the affiant. Cohen v. Manco, 28 Ga. 28. But if Armstrong did actually appear before the justice for the foreclosure of his lien, had an affidavit prepared, and swore to it in fact, but failed to affix his signature, the justice would not be liable, if by an oversight, or in good faith thinking a signature unnecessary, he issued the execution. But the petition here charges, not only that no affidavit was made, but that the execution was collusively issued for the purpose of exacting costs; and for that reason it was error to sustain a demurrer as to Golden, and to dismiss the petition as to Smith on oral motion.

Judgment reversed.

By five Justices.