Brannon v. Central Bank , 18 Ga. 361 ( 1855 )

By the Court.

Starnes, J.

delivering the opinion.

[1.] It is alleged, that the Court erred in over-ruling the-motion to arrest final judgment against the Sheriff, on the two grounds — 1. Because no rule nisi against him had been granted. 2. Because the paper purporting to be such, was' uncertain and indefinite in its character.

1. The record before us shows that a rule nisi had issued. Perhaps not in the form which is most commonly adopted;' but it is a rule calling on the Sheriff to make a return of his actings and doings upon the ji. fa. which is stated at the head of the rule; and in connection therewith, to show cause why he should not be. attached for a contempt of Coiut.

2. It is true that the rule is not so certain in its terms as it might be made. But it seems to have been sufficiently certain, to have enabled the. Sheriff to make his return thereto, without objection from him at the -time. Issue was taken with that return by the plaintiff, a trial had thereon before a Jury, and verdict rendered without any such objection on the part of the Sheriff. After this, such an objection comes too-late. And it must be presumed, that if the rule was not at-first sufficiently certain for all purposes of notice to the Sheriff, it was made so, to his satisfaction, at the trial.

[2.] It is next insisted, that the Court erred in making the .rule absolute, and granting an attachment against the Sheriff, 1. Because the Sheriff should have been notified and required to show cause why he should not be punished for contempt, before the attachment issued. And to support this position, Davis vs. Irwin, (8. Geo. R. 156,) was cited.

In that case, the error alleged was, that “ after the rule was made absolute against the Sheriff, an attachment was ordered to issue against him, without first calling-, on him to show cause why the attachment should not issue against him.” This is the objection which the Court there says,- “ was well taken.” But here the attachment was not ordered;to issue, without first calling on the Sheriff to show caus'e^wdiy he should not be attached. He was called on by the - rule- nisi to make return of his actings and doings in the premises, and also to show cause why he should not be attached for a contempt. Thus, in effect, ho was notified that an attachment would be moved against him, if it should appear that he had net done his duty, and had not paid what he had collected on the fi. fa.

We believe that it is the usual method of procedure, first, to require a return of what the Sheriff has done, when it is desired to move against him for supposed failure of. duty in enforcing a process which has been placed in his hands for execution. And if he be found derelict, he is called on to show cause why the rule should not be made absolute and ho should not be attached for a contempt. Still, if he do receive notification at the time the rule is first moved against him, that an attachment for contempt will be moved against him, if he should be found in default, is not the result, in point of substantial justice, the same to him ?

It has been objected that the final rule, in this case, should not have been that the Sheriff do pay the money, but that he should have been attached for a contempt, if he were found in default of duty.

One construction of the rule which was taken, may bo, that was intended as a punishment for contempt, and that he should be imprisoned until he purged himself of such, contempt, by paying the money found to be due. But that payment, itself, may be regarded as having been intended as a punishment for the contempt; and hence, the objection cannot be sustained.

[3.] The admission of the entry of the rule nisi upon the minutes, nunc pro tunc, was in accordance with a well settled ;and judicious practice; and we have no fault to find with it.

Judgment affirmed.