Mauldin v. Deaton

135 S.E. 500, 163 Ga. 119, 1926 Ga. LEXIS 35

• Court: Supreme Court of Georgia
• Decided: November 10, 1926
• Docket: No. 5319
• Status: Published

Opinion

Gilbert, J.

1. Where a distress warrant was issued and a counter-affidavit was filed and the property replevied by a proper bond, it appearing that the defendant resided in the county, it was the duty of the constable to return all of the papers to the court which ’issued the warrant. Civil Code (1910), § 5391; Dean v. Donalson, 2 Ga. App. 462 (58 S. E. 679), and cit.

2. The papers having been returned to a justice’s court in a district other than the one in which the warrant was issued, and a mandamus absolute having issued requiring the papers to be returned to the proper court, which was in the 407th district, it was immaterial whether the constable returned the papers or another actually returned them by direction of the judge of the superior court who rendered the mandamus absolute.

3. Under the undisputed facts of the case, failure of the court to notify the constable, according to promise, when the judgment absolute was rendered does not constitute fraud against the defendant in the distress warrant, and affords no reason why levy and sale, pursuant to judgment in the justice’s court on the distress warrant, should not proceed. Civil Code (1910), § 5492.

4. It follows from what has been ruled that the court erred in enjoining the constable from proceeding to collect the money on the fi. fa.

Judgment reversed.

All the Justices concur. W. L. Nix, for plaintiffs in error. 8. M. Ledford and John I. Kelley, contra.