Howell v. Gordon , 40 Ga. 302 ( 1869 )

Brown, 'C. J.

1. We do not think the Court below erred in refusing to require proof of the levy in this case, or of the handwriting of the sheriff. The entry of the levy on the fi. fa. is an official act, and the Court will take notice of, and recognize the signature of its own officer to the entry, without proof. In a claim case the burden rests upon the claimant to show that it is not genuine, if he denies it, and not upon the plaintiff Xnfi.fa. The entry is at least prima fade evidence of the levy. Nor do we think the failure to give the notice required by the statute to the tenant in possession a proper point of objection by the claimant. He had notice of the levy, as is shown by the interposition of his claim. If any one else is injured by the failure of the sheriff to give the notice, the sheriff is liable to the injured party for the damages, in a proper proceéding instituted for its recovery.

2. If the judgment from which this execution issued is, as it appears from theft, fa. to be, a judgment rendered in a commpn law action against a citizen of Massachusetts, and a non-resident of Georgia, who was never served with process in this State, the Court had no jurisdiction, and it is a nullity, and may be attacked by the claimant in this case, or by any other person whose rights are affected by it.

3. But it is said in the argument that the action was commenced by attachment, issued against George W. Gordon, the non-resident, which was levied upon the lots of land in dispute as Gordon’s property, and that his agent, Dexter, came into Court, and confessed judgment for him, and thereby made it a general judgment. "We find no evidence in this record that the proceeding was commenced by attachment. The ft. fa. does not show it, nor is there any record in evidence to establish the fact. But if it be so, and the evidence as to the extent of Dexter’s authority be_ correct, it is still bad. Dexter swears he was appointed by power of attorney from George "William Gordon to act as his agent/or these lots, and that since the war he confessed judgment in this case under said power of attorney for Gordon. This evidence, which seems to have been admitted without objection as to the non-production of the power of attorney, simply authorized the agent to look after the lots of land in question. But' it'did not authorize him when an attachment was levied upon them, to go into Court, and confess a judgment binding all the other property of the defendant in attachment. We speak from the evidence before us as to the extent of tjie authority given by the power of attorney, and we hold that it conferred upon the agent no such power as lie has exercised in the confession of a general judgment against the defendant in a proceeding commenced, as is now claimed, by attachment.

If the action was commenced at common law, and the defendant was a citizen of Massachusetts, and was never served in this State, he could not give the Court jurisdiction by sending an agent to Georgia to confess a judgment for him after the action had been instituted without proper service, and whatever effect such judgment, so confessed, may have as between the parties, it may be attacked by the claimant whenever it is necessary for the protection of his rights.

4. It may be proper to add, that if the power of attorney was given prior 'to the war, it was revoked by the war, as the principal was a citizen of Massachusetts, and the'agent a resident or citizen of Georgia, and no act of revocation or renunciation by the parties was necessary. Whenever the parties became alien enemies, by the laws of war, the agency was at an end. It ceased by operation of law. The same remark applies to the agency attempted to be set up in George A. Gordon for George W. Gordon. The agency ceased by operation of law when the war commenced, and George W. Gordon would not be bound by any act done, or admission made, by George A. Gordon, at the sheriff’s sale, in 1863, when Howell bid off the land at sheriff’s sale as the property of Kelly.

. There were numerous points made, and charges asked, as appears by this record. But we do’ not deem it necessary to notice at greater length the errors assigned, on the refusal of the Judge to charge as’ requested. Upon the whole we see but little in the other charges to disapprove. The questions considered cover the important points in the case, and will probably furnish safe rules to guide the Court in the next .trial.

Judgment reversed.