Davis v. Bank of Lexington

Court of Appeals of Georgia

Davis v. Bank of Lexington

116 S.E. 56, 29 Ga. App. 454, 1923 Ga. App. LEXIS 60

CourtCourt of Appeals of Georgia

DecidedFebruary 8, 1923

Docket13503

StatusPublished

Cited by1 cases

This text of 116 S.E. 56 (Davis v. Bank of Lexington) 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.

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Davis v. Bank of Lexington, 116 S.E. 56, 29 Ga. App. 454, 1923 Ga. App. LEXIS 60 (Ga. Ct. App. 1923).

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Opinion

Jenkins, P. J.

1. Tlie provision of section 5571 of the Civil Code (1910), that “ if the sheriff is a party to the cause, the process shall he directed to the coroner of the county, and to the sheriffs of the adjoining coun[455]*455ties, and may be served by either, as convenience may suggest,” is mandatory. A deputy of such a sheriff may not serve such process under any authority given by section 5564, and process or service in contravention of the statutory inhibition is void. Hillyer v. Pearson, 118 Ga. 815 (45 S. E. 701); Civil Code (1910), § 614. The inhibition as prescribed by the code and as interpreted in decisions of the Supreme Court (State v. Jeter, 60 Ga. 489; Flury v. Grimes, 52 Ga. 341-343; Johnson v. Shurley, 58 Ga. 417; Knight v. Morrison, 79 Ga. 55, 3 S. E. 689, 11 Am. St. R. 405) will not, however, be enlarged where such bonded officer is not a party to the litigation, and his act consists in simply serving and returning an ordinary process of a suit in which he might have an indirect personal interest by reason of being an officer and stockholder in the plaintiff corporation. Such a function involving no sort of discretionary power, and being purely ministerial in character, the rule followed in this State with reference to the disqualification of judges and jurors (Roberts v. Roberts, 115 Ga. 259, 41 S. E. 616, 90 Am. St. R. 108) does not have application. The rule as here adopted appears to conform with the construction made-by foreign jurisdictions under similar statutes. 24 R. C. L. 920, 921; Hardwick v. Jones, 65 Mo. 54 (1, 2); Webster v. Smith, 78 Mo. 163; Adams v. Wiscasset Bank, 1 Me. 362 (10 Am. D. 88); Buckeye Refining Co. v. Kelly, Ann. Cas. 1913E, 840 (163 Cal. 8, 124 Pac. 536).

Decided February 8, 1923.

Complaint; from city court of Lexington — Judge Sutton presiding. February 23, 1922.

W. W. Armistead, T. 17. Bucher, Phil W. Davis Jr., for plaintiff in error. Smith, Hammond cO Smith, Hamilton McWhorter Jr., contra.

2. Other assignments of error, not being in any way insisted upon, will be treated as abandoned.

Judgment affirmed.

Stephens and Bell, JJ., eoneur.

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Jenkins, P. J.

1. Tlie provision of section 5571 of the Civil Code (1910), that “ if the sheriff is a party to the cause, the process shall he directed to the coroner of the county, and to the sheriffs of the adjoining coun[455]*455ties, and may be served by either, as convenience may suggest,” is mandatory. A deputy of such a sheriff may not serve such process under any authority given by section 5564, and process or service in contravention of the statutory inhibition is void. Hillyer v. Pearson, 118 Ga. 815 (45 S. E. 701); Civil Code (1910), § 614. The inhibition as prescribed by the code and as interpreted in decisions of the Supreme Court (State v. Jeter, 60 Ga. 489; Flury v. Grimes, 52 Ga. 341-343; Johnson v. Shurley, 58 Ga. 417; Knight v. Morrison, 79 Ga. 55, 3 S. E. 689, 11 Am. St. R. 405) will not, however, be enlarged where such bonded officer is not a party to the litigation, and his act consists in simply serving and returning an ordinary process of a suit in which he might have an indirect personal interest by reason of being an officer and stockholder in the plaintiff corporation. Such a function involving no sort of discretionary power, and being purely ministerial in character, the rule followed in this State with reference to the disqualification of judges and jurors (Roberts v. Roberts, 115 Ga. 259, 41 S. E. 616, 90 Am. St. R. 108) does not have application. The rule as here adopted appears to conform with the construction made-by foreign jurisdictions under similar statutes. 24 R. C. L. 920, 921; Hardwick v. Jones, 65 Mo. 54 (1, 2); Webster v. Smith, 78 Mo. 163; Adams v. Wiscasset Bank, 1 Me. 362 (10 Am. D. 88); Buckeye Refining Co. v. Kelly, Ann. Cas. 1913E, 840 (163 Cal. 8, 124 Pac. 536).

Decided February 8, 1923.

Complaint; from city court of Lexington — Judge Sutton presiding. February 23, 1922.

W. W. Armistead, T. 17. Bucher, Phil W. Davis Jr., for plaintiff in error. Smith, Hammond cO Smith, Hamilton McWhorter Jr., contra.

2. Other assignments of error, not being in any way insisted upon, will be treated as abandoned.

Judgment affirmed.

Stephens and Bell, JJ., eoneur.

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116 S.E. 56, 29 Ga. App. 454, 1923 Ga. App. LEXIS 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-bank-of-lexington-gactapp-1923.

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