Huson v. Martin , 42 Ga. 85 ( 1871 )

Lochrane, C. J.

The record in this case discloses that Huson had a judgment against Roberts and Starke, obtained in 1869, upon which execution issued, and was placed in the hands of the sheriff, Martin, to levy; that a rule had been taken against the sheriff for not paying over the money thereon, and the sheriff had answered the rule, and the Court adjudged his answer insufficient, and made the attachment absolute; that the sheriff excepted to the judgment of the Court in the premises, gave bond operating as a supersedeas until the hearing of the case before this Court.

Subsequent to these proceedings, upon the rule against Martin, sheriff, this case was presented to the Court by petition setting out these facts and the whole record of the original suit below, and asking the Court to instruct the sheriff to proceed to levy and make the money on the ji. fa. The Judge declined giving the instructions asked upon the ground that he had already granted the attachment absolute for the money due on this fi. fa., against the sheriff. And this judgment constitutes the error complained of.

This question is somewhat anomalous, and arises under the peculiar circumstances of the case. In the answer of the sheriff to the rule, he sets out as his excuse or reason for not making the money, that the resolution of the Legislature staying the collection of fi. fas., obtained upon debts contracted before June, 1865, prevented him making the money. And this direction was invoked upon the two propositions :

1st. That the record disclosed that this case was not within the resolution, and

2d. That the ministerial character of the sheriff’s office and his good faith, might be a ground for his protection, and the instructions prayed were intended to anticipate the judgment of this Court, and leave him without excuse or defense thereafter, in case he should be protected.

In our opinion the party plaintiff had his option to initiate his proceedings in the Court below. The sheriff was liable to rule or action, but not both, and proceedings against him upon rule for the money, suspended other action .until that was disposed of. On waiving any step against the sheriff primarily, they had the right to proceed before the Court for instructions directing the levy, upon proper petition, making the defendants thereto parties, and adjudicating the rights presented by petition, and answers in the premises; but having instituted their proceedings directly against the sheriff, other modes were suspended until this was discharged.

And inasmuch as the sheriff, by his bill of exceptions, superseded the judgment against himself for the money due on this ji. fct., we are of opinion, that the Court had no other instruction to give. He had already decided the question raised by this very petition as against the sheriff, and he could not conclude the parties, defendant, by a judgment on their respective rights, in such a summary mode as that invoked by the pleadings in this case. We therefore affirm the judgment of the Court below.

Judgment affirmed.