Thrash & Co. v. Harman

94 S.E. 54, 21 Ga. App. 98, 1917 Ga. App. LEXIS 450

• Court: Court of Appeals of Georgia
• Decided: October 31, 1917
• Docket: 8506
• Status: Published

Opinion

Bloodworth, J..

A rule against a constable to distribute money in his hands is essentially an equitable proceeding. In Coleman v. Slade, 75 Ca. 73, it was said: “It must be borne in mind that these issues on money rules against the sheriff, when creditors contest for their respective rights and priorities of lien, are in the nature of equitable proceedings, and should be determined accordingly; and no irregularities should defeat the real equities of the parties and justice of the ease.” In Wright v. Brown, 7 Ga. App. 389 (66 S. E. 1034), it was held: “If the title to the property sold as the property of the defendant in attachment be in a third person by reason of his having reserved it in writing as security for the purchase-money, that third person may waive his right to follow the property and recover it from the purchaser at the sale, and in that event can, on money rule, have the proceeds .of the sale applied upon his debt; and this is true notwithstanding he gave public notice on the day of the sale that whoever bought would buy subject to his title.” . The same principle was applied in the case of Browder-Manget Co. v. Blake, 135 Ga. 71 (68 S. E. 837). See also Civil Code (1910); § 5348; Rucker v. Tabor, 133 Ga. 720 (66 S. E. 917); National Bank v. Exchange Bank, 110 Ga. 692 (36 S. E. 265); Baker v. Gladden, 72 Ga. 469; Field v. Armstrong, 69 Ga. 170; Bradshaw v. Gormerly, 54 Ga. 557, 559; Ragan v. Coley, 4 Ga. App. 421, 422 (5) (61 S. E. 862); Georgia Realty Co. v. Bank of Covington, 19 Ga. App. 219, 222 (91 S. E. 267). Under these decisions it seems clear that the conclusion reached in this case by the presiding judge was equitable, and that the money was properly awarded. See also Hinton v. Burns, 20 Ga. App. 467 (93 S. E. 120).

• Judgment affirmed.

Broyles, P. J., arid Harwell, J., concur.