Drawdy v. Littlefield , 75 Ga. 215 ( 1886 )

Jackson, Chief Justice.

Eliza Drawdy caused to be levied upon certain property an execution of hers against T. P. Littlefield & Bro. The property was claimed by Mrs. L. H. Littlefield. On the trial of the claim, the claimant moved to dismiss the levy. The motion was granted, and the plaintiff in execution excepted.

1. The judgment on which the execution was issued was rendered by a lawyer as judge pro hao vice, and this, it is first alleged, made the judgment void, and the execution which rested on it a nullity, because the appointment of such a judge pro hao vice was then unconstitutional, it being prior to the constitution of 1877. It was done by agreement of the parties, and was constitutional, as decided by this court, 39 Ga., 361; 41 Id., 268. Therefore, on this ground, it was error to dismiss the levy.

2. That the fi. fa. bore test in the name of the regular judge of the superior court does not make it invalid, though this judge did not preside when judgment was rendered, being disqualified from presiding. The use of his name in this merely formal attest ation does not annul t he process. When process was issued to bring in the parties defendant to answer on the trial, that process bore test in his name, too. Who would say that it vitiated that process? The clerk used both—neither was seen by the judge—and the act is a ministerial act of the clerk. So in regard -to the objection that the judge presided when this fi. fa. was authorized to be issued to conform to the judgment, as the first did not. Though somewhat judicial, it was a mere formal correction of error in the clerk. The clerk himself might have done it without authority; certainly he can issue an alias fi. fa., the first being lost. Code, §§3496, 3988. Even a justice of the peace might issue an alias in his court. See also §3632; 55 Ga. 607; 60 Id., 298.

3. The fi. fa. need not name the term of the judgment on which it rests. It is perfectly' good if it declare that it was lately rendered in court and is for so much principal, so much interest up to a certain date, and also interest, or together with interest, from that date. That date is the date of the judgment. It may be entered four days after adjournment, and thus in vacation and not in term. If the exception follow the judgment, that is enough. Code, §3636. This follows it, and is in the usual language of such a writ. »

4. T. P. Littlefield was served. The levy is on property as his, not that of Littlefield & Bro. He lived in the county of Ware; his brother in another county. The court papers were lost and re-established. It is reasonable that the second original, on which the brothers’ service appears, was not re-established. The transaction transpired some fifteen or more years ago. By agreement of counsel of Littlefield & Bro., defendants, the pro han vice j udge was appointed; so both appeared by counsel, and instead of pleading assented to the judge and the judgment. The judge pro hac vice, so agreed upon by coufisel on both sides, signed the judgment against both by name. We are clear that the lapse of time, the various trials at la w an d in equif y, the agreement to try by the judge pro hac vice, the regular judge being agreed to be disqualified, the entering of judgment against both, the loss of papers, the establishment of these as they are, the impossibility of service appearing on the first original, the great probability that it would appear on the second original, the presumption that neither the counsel for plaintiff nor defendants would have consented to a j udgment, nor the j udge have rendered it, without service—-all make a case that it is morally certain that both defendants were served. Certainly this one, whose individual property is levied upon as his own, and claimed by his wife, was served.

5. Though the levy itself does not say that it is made on property as property of T. P. Littlefield, the claimant so recognized it in her affidavit of claim, and this solemn admission in judicio, under oath, too, estops her from denying that it was levied on as his property.

We are forced, therefore, as well by the rules of law as by the furtherance of the ends of justice, to uphold the validity of the judgment and execution, and to hold the dismissal of the levy, on any ground disclosed by the record, erroneous.

Judgment reversed.