State Bank v. Moore , 148 Ga. 198 ( 1918 )

Beck, P. J.

(After stating the facts.) The claimant contends that the plaintiff in fi. fa. was not in a position to insist upon the lien of his judgment, because of a failure to record his fi. fa. in accordance with the provisions of the Civil Code, § 3321. That section is as follows: “The clerk of the superior court of each county shall be required to keep a general execution docket;- and as against the interests of third parties acting in good faith and without notice, who may have acquired a transfer or lien binding the defendant’s property, no money judgment obtained within the county of the defendant’s residence, in any court of this State, whether superior court, ordinary’s court, county court, city court, or justice court, or United States court in this State, shall have a lien upon the property of the defendant’from the rendition thereof, unless the execution issuing thereon shall be entered upon said docket within ten days from the time the judgment is rendered. When the execution shall be entered upon the docket after the ten days, the lien shall date from such entry.” In the case of Harvey v. Sanders, 107 Ga. 740 (33 S. E. 713), it was held that the provisions of this section were intended not only for the protection of innocent creditors who might acquire liens or transfers of property of the defendant in fi. fa. to secure their debts, but also for the protection of bona fide purchasers for value. And we are of the opinion that this contention of the claimant is sound. The defendant in error maintains that the ruling made in the case of Crosby v. King Hardware Co., 109 Ga. 452 (34 S. E. 606), is applicable under the facts of this case. The ruling there made is as follows: “Inasmuch as section 2779 of the Civil Code [Code of 1910, § 3321] allows the plaintiff in a judgment obtained in any court of this State ten days from the date of its rendition within which to have the execution issued thereon entered upon the general execution docket of the county, the plaintiff in a county-court judgment may properly delay applying for an execution with a view to having the same entered on such docket until after the four days allowed the defendant for entering an appeal have expired; and inasmuch as the entering of the appeal during four days prevents the issuance of the execution by the county judge, the lien of the judgment appealed from, relatively to one who purchased from the defendant pending the appeal, is not affected by a failure on the part of the plaintiff to have execution issued and entered within ten days from the date of such judgment.” We do not think the ruling made in the Crosby ease should be so extended as to include a case like the present one. The court was dealing, in the Crosby case, with the effect of an appeal which must be entered within four days; that is, within a period less than the period within which an execution must be entered upon the general execution docket. An appeal differs also from a motion for a new trial, in this, that an appeal suspends the judgment, whereas a rule nisi issued where a motion for a new trial is made does not necessarily operate as a supersedeas, though it may do so where the judge orders it. And again, the motion for a new trial may be filed after the time within which the execution would necessarily be recorded, under the provisions of the Civil Code, § 3321. We do not think that the plaintiff who has reduced his claim to judgment can delay for thirty days, the time within which a motion for a new trial must be filed, and twenty days longer than the period within which the execution'must be recorded, and still insist upon the validity of his lien as against a deed to a bona fide purchaser without notice, who has purchased before the record of the execution. Under the uncontroverted facts in the record the claimant was entitled to a finding in his favor, and the contrary finding was error.

Judgment reversed.

All the Justices concur.