Wilbur v. Stokes , 1903 Ga. LEXIS 288 ( 1903 )

Lamar, J.

A levying officer is not bound to inquire into the validity of the proceedings on which the execution is based. If the process is from a court of competent jurisdiction, issued by the proper officer, regular on its face, and the constable has no notice, from the writ or papers attached thereto, of defects in the proceedings, or that the execution has been superseded, he is not liable for damages in levying the same, even though the judgment on which it issued is void. Johnson v. Fox, 51 Ga. 270; Singer Co. v. Barnett, 76 Ga. 377; Jordan v. Porterfield, 19 Ga. 139. In Gunn v. Pattishal, 48 Ga. 405, the fi. fa. recited the substance of the defective affidavit of foreclosure, and its invalidity was apparent on the face of the execution.

Judgment affirmed.

By Ave Justices.

Action on bond. Before Judge Felton. Bibb superior court. April 24, 1902.

This was an action on a constable’s bond, for damages occasioned by the levy of a fi. fa. issued on a void judgment against a garnishee. It appeared that the affidavit and bond were signed on April 18, 1901; that a summons dated the same day, requiring an answer on April 20, was served on April 19; and that judgment-by default was entered against the garnishee on April 20, 1901. An execution regular on its face issued thereon May 2, and was levied, May 7,1901, by Stokes, a constable of another district, who did not serve the summons of garnishment, and knew nothing of' the proceedings on which the fi. fa. issued, and had no knowledge-of the invalidity of the judgment. The bill of exceptions contains-several assignments of error, all of which present different phases of the one question whether, under the law, the constable was liable where the writ was fair on its face and he had no notice of the fact that the judgment was void because rendered within two days after service of the summons.

Marion W. Harris, for plaintiff. Hardeman & Moore, for defendants.