Harvey v. Long Cigar & Grocery Co.

135 S.E. 222, 36 Ga. App. 45, 1926 Ga. App. LEXIS 748

Opinion

Jenkins, P. J.

Where a judgment in favor of a claimant was reversed by the appellate court, and the judgment of that court was made the judgment of the court below, and an execution for the costs incurred in the proceeding in the appellate court was issued against the claimant and the sureties on the forthcoming bond, the fact that the judgment on the remittitur included the sureties as liable with the claimant for such costs did not render that judgment and the execution founded thereon illegal so far as the claimant was concerned. Ray v. Atlanta Banking Co., 110 Ga. 305 (6) (35 S. E. 117). Accordingly, on the trial of an affidavit of illegality interposed to a levy of the execution upon the property of the claimant, the court correctly held that tfrfe execution was proceeding legally so far as the claimant was concerned.

Nor was the levy under such an execution, issued in the name of the plaintiff for the use of officers of court, subject to be arrested by affidavit of illegality on account of its being made to appear that the attorney for the plaintiff had advanced the' costs incurred in the appellate court. Civil Code (1910), § 6210.

The ground that the execution was proceeding illegally for the reason that it appeared that the appellant had not actually paid the costs is without merit, .especially since the execution was on its face proceeding for the benefit of the officers.

Decided October 13, 1926. J. J. Bull & Son, for plaintiff in error. Jule W. Felton, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.