Baldwin v. Hudson , 1897 Ga. LEXIS 365 ( 1897 )

Simmons, C. J.

The dormancy of the judgment from which the execution was issued depended upon the entry made by the coroner. Section 496 of the Political Code provides that “When a sheriff is disqualified, and it does not appear upon the face of the proceedings, or he or his deputy refuses to perform a service, if any person makes affidavit thereof, the clerk of the court from which .it issues shall place the process in the hands of the coroner for execution, and may compel its return to his office for such purpose.” The judgment in this case was rendered in October, 1876, against Myers. Execution was issued thereon. Subsequently to the issuing of the execution, Myers was elected sheriff of the county and was sheriff at the time the entry of the coroner purports to have been made, but it does not “appear upon the face of the proceedings” that Myers was disqualified from levying the execution. It was therefore necessary for the plaintiff, or some other person controlling the execution, to make an affidavit as to the sheriff’s disqualification in the premises, in order to authorize the coroner to execute the process, the execution not being directed to him. Plaintiff in execution sought to establish a copy of the affidavit which he claimed to have made and filed with the clerk at the time the execution was placed in the hands of the coroner. This was resisted by the claimant.' The judge heard the evidence of the witnesses for both parties, and refused to establish the copy, holding, we suppose, that the evidence did not affirmatively show that the affidavit had been filed when the execution was placed in the hands of the coroner. While the evidence was conflicting upon this question, it largely preponderated in favor of the claimant, and the court did not err in holding, under the evidence, that no such affidavit was filed. He consequently did not err in dismissing the levy upon the ground that the judgment was dormant at the time the last levy was made.

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Upon an issue formed upon a motion to establish a copy of a lost office paper, the judge is the proper tribunal to hear the evidence and pass upon the same, though he may, if he see proper, submit the questions of fact to a jury. After he has heard the evidence and decided the question thereunder, it is too late for the losing party to tender an issue and ask that it be submitted to the jury.

Judgment affirmed.

All the Justices concurring.