Jones v. Rountree , 96 Ga. 230 ( 1895 )

Lumpkin, Justice.

1. Section 355 of the code distinctly authorizes the appointment of deputy-sheriffs, and requires these officers to give bond with sureties. It is difficult to conceive why deputy-sheriff's should be appointed at all, if they, are not at least competent to perform such duties pertaining to the sheriff’s office as serving papers and making entries of such service. It is true that in 1892 the General Assembly passed two acts amending, re-' spectively, sections 3971 and 3972 of the code, so as to provide in terms that executions issued upon the foreclosure of chattel mortgages should be directed to, and levied by, not only the sheriff, hut also his lawful deputies. . (Acts of 1892, pp. 62, 63.) We are unahle to see, however, that there was any necessity for the passage of these acts. No reason now occurs to us why the direction of an execution to a sheriff' would not also include a direction to his deputy, and authorize the latter to levy it. Certainly, under the practice which had long prevailed in this State, sheriff's could lawfully perform the niost (if not all) of their duties by and through their regularly appointed deputies. Accordingly, we hold that an entry of service upon a bill of exceptions, made and signed officially by a deputy-sheriff, is sufficient evidence of legal service by a proper officer.

A motion was made to dismiss the writ of error in the present case, for want of service of the bill of exceptions; and in this connection an effort was made to traverse the truth of the entry of service made by the deputy-sheriff. There is no law, of which we have any knowledge, authorizing an issue of this kind to be made up and tried in this court; and we therefore declined to enter upon such a trial, and as a consequence overruled the motion -to dismiss.

2. In 1855 the court of ordinary of Lowndes county appointed an administrator upon the estate of an intestate who, at the time of his death, was a resident of that county. In 1858 the county of Brooks was created, a portion of its territory being taken from the county first named; and the residence of the administrator being situated in that part of Lowndes county which was transferred to Brooks county, he became a resident of the latter. The question is, whether or not, upon these facts and without more, the administrator was authorized to make his returns to the ordinary of Brooks county, and thus change the jurisdiction of the administration to that county. It was insisted that under section 34 of the code this question should be answered in the affirmative. We entertain a different view of the matter. Raws prescribe only for the future. Code, §6. . The original code took effect January 1st, 1863, and all Tights, obligations and duties by the then existing laws remained binding. Code, §4. Therefore, no transfer of jurisdiction from Lowndes county to Brooks county was •effected by or under the section of the code first above ■cited, because, as has already been seen, Brooks county was created in 1858, not only before the code took effect, but only two days after its adoption was provided for by statute. If Brooks county had been created after the code went into effect, section 34 would have been applicable; but as it was created before that time, the law applicable to the removal of an administration to that, comity from the county of Lowndes was the act of 1812 (Cobb’s Dig. 318), as explained by the act of 1856 (Acts of 1855-6, p. 152). The provisions of these acts are now embodied in sections 2611-2613 of the present code. A decisive reason for concluding that the first •code did not intend to treat Brooks as a new county, is •derived from the fact that the name of this county is found in section 30 of that code as an existing or “old” county. The new counties contemplated in subsequent sections were such as might afterwards be formed from the territory of the old couuties. This is manifest from the language of these sections. If, under the original code, it was proper to treat Brooks as a new county, no good reason can be suggested why most of the other counties named with it in section 30 should not have been also thus treated, for a large majority of them were laid out from couuties previously formed. For instance, Baker was taken from Early, Butts from Iienry and Monroe, Clarke from Jackson, Cobb from Cherokee, Columbia from Richmond, and so on. Lowndes itself was laid out from Irwin.

3. The order of sale granted to the administrator was a mere nullity for want of jurisdiction in the court of ordinary granting it, and perhaps for other reasons suggested in the record; but nevertheless, under the peculiar and special facts of this case — the material portions of which are briefly summarized in the third head-note, we are of the opinion that the plaintiffs below were entitled to maintain their equitable petition for the purposes stated. It is quite true that the rule that a voidable sale by an administrator must be repudiated within a reasonable time (generally, as settled by the latest cases, within seven years), does, not apply; but we think, in view of all the evidence, that the acquiescence by the heir in the possession held by the administrator ostensibly in his own right was not, as contended, accounted for and. explained upon the idea that this was mere indulgence by a son to his mother and her second husband, who was the administrator. On the contrary, in view of the evidence as a whole, we think the conduct of this heir, extending over a period of more than twenty years, after he became of age, amounted to such an admission on his part that the administrator was the real owner of the land, as to estop the heir from asserting the contrary-to the prejudice of the complaining creditor. Of course, the consent decree rendered in the equitable proceeding between the heir and the administrator, to which the creditor was not a party, amounted to. nothing as against the latter, and could not in any manner interfere with the assertion by him of his rights in the premises.

Judgment affirmed.