Gunn v. Johnson & Co.

114 S.E. 709, 154 Ga. 568, 1922 Ga. LEXIS 420

• Court: Supreme Court of Georgia
• Decided: November 24, 1922
• Docket: No. 3115
• Status: Published

Opinion

Atkinson, J.

1. The statutory provision that the judges of the county courts in this State shall have jurisdiction to “ foreclose mortgages on personal property and liens” (Park’s Civil Code, § 4775 (mm); Ga. Raws, 1871-2, p 292) includes power of the judge to take the statutory affidavit and issue execution as provided in the Civil Code (1910), § 3366.

2. The authority conferred by section four of the act creating the city court of Millen (Acts 1912, p. 245), upon the judge of that court, “ to do all acts which the judges of the county courts of this State are authorized to do, unless otherwise provided in this act,” includes jurisdiction of the judge to take statutory affidavits and issue executions thereon in the foreclosure of liens on personalty as provided in the Civil Code (1910), § 3366.

(а) The provision in section nineteen of the act creating the city court of Millen, that “ all executions issuing from said court shall be attested in the name of the judge and signed by the clerk,” refers to executions issued upon judgments rendered in the court, and does not limit the power of the judge to issue executions on affidavits for foreclosure of liens on personalty.

(б) Section nineteen of the act creating the city court of Millen, supra, is as follows: “ All judgments obtained in said court shall be a lien on all property of the defendant, or defendants, throughout the State, in the same manner as judgments of the superior courts are; but property exempt from levy and sale under the laws of this State shall be exempt from levy and sale under process from said court, and all executions issuing from said court shall be attested in the name of the judge and signed by the clerk and directed to the sheriff of the city court of Millen, or his deputies, and to all and singular the sheriffs .or their deputies of the State of Georgia.”

3. It follows from the rulings announced in the preceding notes, that the judge of the city court of Millen has power, in the foreclosure of liens upon personalty, to take the statutory affidavits, and on the basis pf such affidavits to issue executions under the orovisions of the statute relating to foreclosure of sucli liens, and that in a given case an execution so issued is not void on the ground th^t it was issued by the judge and not by the clerk of the city court of Millen.

No. 3115. November 24, 1922. Willie Woodrum, for plaintiff in error. A. 8. Anderson, contra. All the Justices concur.