Mosely v. Sanders

76 Ga. 293

Opinion

Jackson, Chief Justice.

This is an action brought against the sheriff for’damages in levying a dormant judgment and declining to receive an affidavit of illegality, thereby forcing the plaintiff in the present suit to purchase the land and damaging him thereby. The jury found for the plaintiff, and the case comes before us for review. •

1. Was the judgment dormant? It was rendered in April, 1866, fi.fa. issued in May, and delivered to the sheriff in October of the same year. This fi.fa. was lost, and an alias was issued at the April term, 1875, and levied on the lands of the defendant in execution, the plaintiff in the present action. The case of Turner vs. Grubbs, 58 Ga., 278, covers this point all over; and that case was followed by Smith vs. White, 63 Ga., 236, and is too well established to be reviewed now. . Stare decisis should be adhered to, even if originally the question was doubtful.

2. Was the plaintiff entitled to recover? The sheriff declined to receive the affidavit of illegality when it was the defendant’s, present plaintiff’s, remedy. Smith & Merrritt vs. Dickson & Harris, 9 Ga., 400. The rejection of the affidavit is at sheriff’s risk (Sullivan & Price vs. Hearnden, 11 Ga., 294; Tucker et al. vs. Respass, 28 lb., 613), and he becomes responsible to the injured party. Same cases.

3. Expenses of litigation do not fall under the head of punitive or vindictive damages under our Code, but they stand by themselves.

Section 2992 of the Code,regulates their position and when they may be recovered. Where the sheriff acted in bad faith, they would be recoverable; or if he had been stubbornly litigious, or had caused the plaintiff -unneces sary trouble and expense, then the jur y may allow them.

We think this case falls within the last italicized ground in the statute above cited. He should have received the affidavit and had the Question of the dormancy of the judgment and illegality of the process tried by the court. He could not have been made liable by the other side for doing so in this case. Taking the charge, as given in the three extracts from it excepted to, we see no error in it, all construed together, and none in overruling the motion for a new trial.

Judgment affirmed