Bryant v. Freeman

Court of Appeals of Georgia

Bryant v. Freeman

16 S.E.2d 113, 65 Ga. App. 590, 1941 Ga. App. LEXIS 357

CourtCourt of Appeals of Georgia

DecidedJuly 16, 1941

Docket29005.

StatusPublished

This text of 16 S.E.2d 113 (Bryant v. Freeman) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bryant v. Freeman, 16 S.E.2d 113, 65 Ga. App. 590, 1941 Ga. App. LEXIS 357 (Ga. Ct. App. 1941).

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Opinions

Felton, J.

Where an execution is levied on personal property and it is returned to the defendant in fi. fa. upon his giving to the sheriff a receipt agreeing to return it on demand, a refusal on the part of the defendant in fi. fa. to return the property to the sheriff on demand for the reason that he contends that the execution has been paid, does not estop the defendant subsequently to contend that the execution had become dormant, for the reason that such former contention could not reasonably be said to have prevented the plaintiff in execution or the transferee from proceeding with the execution either as to the property levied on or otherwise.

The entry of levy on an execution within seven years from the timely entry of the execution on the general execution docket of the county in which the judgment was rendered will not suffice to keep the judgment alive. In order for such an entry to be effective in preventing dormancy it must be entered on the general execution docket within seven years from the time of the previous effective entry on such docket. The bona fide public effort which will suffice to prevent dormancy is one which appears on the public docket of a court. Lewis v. Moultrie Banking Co., 36 Ga. App. 347 (136 S. E. 554); Minter v. Felder, 55 Ga. App. 785 (190 S. E. 273), and cit.; Code, § 110-1001. There was no such public record in this ease.

It was not error for the judge of the municipal court of the City of Macon to sustain the affidavit of illegality of the defendant in fi. fa. to the execution, upon which garnishment was issued on Nov. 27, 1940, where it appeared that the judgment upon which the execution issued was rendered October 6, 1925; that the execution issued October 6, 1925; that the execution was entered on the general execution docket October 17, 1930, and that a levy on an automobile was entered on the execution on July 14, 1936, but was not entered on the general execution docket of the county in which the judgment was rendered.

Judgment affirmed.

Sutton, J., concurs.

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Felton, J.

Where an execution is levied on personal property and it is returned to the defendant in fi. fa. upon his giving to the sheriff a receipt agreeing to return it on demand, a refusal on the part of the defendant in fi. fa. to return the property to the sheriff on demand for the reason that he contends that the execution has been paid, does not estop the defendant subsequently to contend that the execution had become dormant, for the reason that such former contention could not reasonably be said to have prevented the plaintiff in execution or the transferee from proceeding with the execution either as to the property levied on or otherwise.

The entry of levy on an execution within seven years from the timely entry of the execution on the general execution docket of the county in which the judgment was rendered will not suffice to keep the judgment alive. In order for such an entry to be effective in preventing dormancy it must be entered on the general execution docket within seven years from the time of the previous effective entry on such docket. The bona fide public effort which will suffice to prevent dormancy is one which appears on the public docket of a court. Lewis v. Moultrie Banking Co., 36 Ga. App. 347 (136 S. E. 554); Minter v. Felder, 55 Ga. App. 785 (190 S. E. 273), and cit.; Code, § 110-1001. There was no such public record in this ease.

It was not error for the judge of the municipal court of the City of Macon to sustain the affidavit of illegality of the defendant in fi. fa. to the execution, upon which garnishment was issued on Nov. 27, 1940, where it appeared that the judgment upon which the execution issued was rendered October 6, 1925; that the execution issued October 6, 1925; that the execution was entered on the general execution docket October 17, 1930, and that a levy on an automobile was entered on the execution on July 14, 1936, but was not entered on the general execution docket of the county in which the judgment was rendered.

Judgment affirmed.

Sutton, J., concurs.

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Bluebook (online)

16 S.E.2d 113, 65 Ga. App. 590, 1941 Ga. App. LEXIS 357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryant-v-freeman-gactapp-1941.

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