State v. Fears

Simmons, C. J.

When this case was here before, the court ruled the law which, in its opinion, ought to control in the final disposition of the case. The main question then argued was as to the legality of a sheriff’s sale of intoxicating liquors in a prohibition county. That question was decided, and also other questions made in the pleadings, as will be seen by reference to the opinion of Mr. Justice Little (102 Ga. 274). The judgment of the court below was reversed and the case sent back for a rehearing upon the facts. When it again came before the trial judge, upon substantially the same state of facts as before, he refused the injunction and declined to direct the sheriff as to the manner in which he should conduct the sale.

As to the refusal of the injunction, we think, from the facts disclosed by the record, that the judge did not abuse his discretion. As to his declining to direct the sheriff as to the mode and manner of conducting the sale, we also think that the judge committed no, error. In the former decision of the case, while it was ruled that “ The court has always the power in judicial sales to regulate the manner of such sales; and in execution sales, also the power, for fraud, mistake, or irregularity, to control and even set them aside in its legal discretion,” the court did not rule that it is the duty of the judge to direct the sheriff in the manner of his sales, unless some complaint is made, after the sale has commenced, of fraud, mistake, or irregularity. The court did not at all intend to put upon the judge the duties of the sheriff as to the direction of the mode and manner of conducting sheriff’s sales. The manner of conducting execution sales is by law placed in the discretion of the sheriff, and until he abuses that discretion the court has, ordinarily, no right or power to interfere. Of course, as said by Mr. Justice Little in his opinion, if it should appear that the sheriff is guilty of any fraud, irregularity, or error in making the sale, the judge would be authorized, upon proper proceedings instituted for that purpose, to prevent it. So if the sheriff was in collusion with the plaintiff and defendant for the purpose of making an illegal sale, or a sale which would amount to a public nuisance, the judge would be authorized to prevent it. These questions were all presented to the judge; he passed upon them in the light of the evidence before him, and he declined to direct the sheriff as to the manner of the sale. He must have thereby found from the evidence that the sheriff was not in collusion with the parties, and that he did not intend to perpetrate any fraud on the public in exposing the liquor for sale, but intended to conduct the sale fairly and according to law. The judge’s knowledge of the witnesses and of the character of the sheriff was better than ours; and we can not, therefore, interfere with his discretion in the matter. ■Of course, after the sale has begun, if another application be made to the court,- and it be shown that the sheriff is conducting the sale illegally, the court will be authorized to interfere and to prevent it.

Judgment affirmed.

All the Justices concurring.