Brown v. McCrary

30 Ga. 878

Opinion

By the Court.

Stephens, J.,

delivering the opinion.

The sheriff ought to have levied on the property and sold it, unless a claim had been interposed in this case. The adjudication of the claim which was interposed in another case, cannot settle the right of this plaintiff in execution, for two reasons: In the first place, he is not a party to that litigation, and, therefore, cannot be bound by the result of it. In the second place, the merits of that ease may be very different from the merits of a claim in his case. The true issue in a claim case is, whether or not the claimant has such an interest in the property as ought to prevent the plaintiff from selling it. Now the claimant may have an interest which is perfectly adequate to stop one plaintiff, but powerless to stop another. The statute makes the sheriff liable whenever he neglects his duty to the injury of a party. Here are both the neglect of duty and the resulting injury to the plaintiff. Whether he is to be met with a claim in his case or not, he has been delayed in the enforcement of his remedy, and delay is injury.

Judgment reversed.