Speer v. McPherson

24 Ga. 146

• Court: Supreme Court of Georgia
• Decided: January 15, 1858
• Status: Published

Opinion

Brnninu, J.

By the Court. delivering the opinion.

Is a rule absolute against a Sheriff, requiring him to pay over money, such a judgment as binds his property in the same way in which, judgments on verdicts, bind it? This is the great question.

And we think that it is not.

The full import of such a judgmeht is, that the Sheriff do pay over the money or that in default thereof he be committed. to jail, uot, that in default thereof, the money be made out of his property. How then can it bind his property.

A fi. fa. to execute such a judgment is a thing never heard of. How is this fact to be accounted for, except by assuming, that such a judgment does not bind property?

Indeed, such a judgment is of the nature of a sentence in a criminal case — a sentence imposing a fine. Such a sentence does not bind the property of the culprit. The Court may remit a fine, during the (term at least. Suppose the Court had remitted the requisition contained in this rule, would that be a payment or satisfaction to the plaintiff, in the rule? Surely not. Such a judgment is quite different from the ordinary judgment rendered on a verdict.

It is true, that the Act of 1810, to point out a rule for the-priority of judgments, uses the comprehensive words, “all judgments,” saying, that “all judgments obtained in the Superior, Inferior, or Justices Courts,” “shall be entitled to the-right or claim of any money received by the Sheriff,” &c. Pr. Dig. 435. Still, it cannot be,that the Act can, by virtue of such words as these, include judgments which, by their own import, cut themselves off from the right to claim such money.

Indeed, by the title, the Act is one to regulate liens; not one to create liens; and, by the law previously existing, rules absolute against Sheriffs, were judgments without lien. It is not to be presumed, that the Legislature by the’use of general expressions in the body of the Act, intended to make the body different from the title, and thus, intended to violate the Constitution.

We think, then, that the rule absolute against the Sheriff had no lien on his property, and therefore, that it was not entitled to take the money raised out of his property by fi. fas. to the exclusion of those fi. fas. And, therefore, we think, that the Court erred in not granting the certiorari.

There were some other grounds on which the application for the certiorari was also put. These we think were plainly of no validity.

It was objected in this Court, by McPherson’s counsel that the mortgagee, Speer, had not the right to intervene, in the ease. He was allowed to intervene in the Inferior Court; no objection to his intervening was there made. The objection as made here, was put upon the ground, that the remedy of Speer was by a bill in equity, and not, by a participation in the case made by the money rulé. A money rule is, itself, an equitable proceeding; and one, which, in my own opinion, was open to Speer in this case. 9 Ala. 679, and cases sited.

At any rate, it is now too late to urge such an objection.

Judgment reversed.