Wilcher v. Williams

Court of Appeals of Georgia

Wilcher v. Williams

127 S.E. 795, 33 Ga. App. 797, 1925 Ga. App. LEXIS 726

CourtCourt of Appeals of Georgia

DecidedApril 18, 1925

Docket15918

StatusPublished

This text of 127 S.E. 795 (Wilcher v. Williams) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wilcher v. Williams, 127 S.E. 795, 33 Ga. App. 797, 1925 Ga. App. LEXIS 726 (Ga. Ct. App. 1925).

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Opinion

Jenkins, P. J.

1. “When judgments have been obtained against several persons and one or more of them has paid more than his just proportion of the same, he or they may, by having such payment entered on .the fi. fa. issued to enforce said judgment, have full power to control and use said fi. fa. as securities in fi. fa. control the same against principals or cosureties, and shall not be compelled, as heretofore, to sue the codebtors for the excess of payment on such judgment.” Civil Code (1910), § 5971.

2. “A clerk of the superior . . court is not authorized by law to collect money on judgments or executions obtained in, or sued out of, their respective courts, and a payment made to a clerk, on a judgment or, execution, is not good as a payment against the plaintiff.” Bank of Georgetown v. Ault, 31 Ga. 359. Thus, where a general execution issues from a superior court on a judgment rendered against joint defendants, and there are entered on the fi. fa. stated sums as paid by one of the defendants to the plaintiff, followed by an entry, “This fi. fa. paid in [798]*798•full . . by [the named defendant] to” the named plaintiff, all signed only by the clerk of the court, the entries are not sufficient to form a legal basis for a subsequent levy by the sheriff on property of one of the defendants at the instance of the defendant making the alleged payments, under the provisions of the quoted code section requiring such payments to be entered upon the Ji. fa. The judge of the. superior court, therefore, did not err in dismissing the levy, upon'the affidavit of illegality. As the levy was illegal for the reason stated, it is unnecessary to determine the additional grounds of illegality urged, or whether, if the entries of payment had been signed by the plaintiff in fi. fa. or a proper officer, they would have supported a valid levy, even though no written transfer, sufficiently indicating the amount of the payment, had been procured from the plaintiff in fi. fa. or from one duly authorized to collect the fi. fa. for him.

Decided April 18, 1925. J. G. Newsome, for plaintiff in error. M. L. Felts, contra.

Judgment affirmed.

Stephens and Bell, JJ., eoneur.

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Jenkins, P. J.

1. “When judgments have been obtained against several persons and one or more of them has paid more than his just proportion of the same, he or they may, by having such payment entered on .the fi. fa. issued to enforce said judgment, have full power to control and use said fi. fa. as securities in fi. fa. control the same against principals or cosureties, and shall not be compelled, as heretofore, to sue the codebtors for the excess of payment on such judgment.” Civil Code (1910), § 5971.

2. “A clerk of the superior . . court is not authorized by law to collect money on judgments or executions obtained in, or sued out of, their respective courts, and a payment made to a clerk, on a judgment or, execution, is not good as a payment against the plaintiff.” Bank of Georgetown v. Ault, 31 Ga. 359. Thus, where a general execution issues from a superior court on a judgment rendered against joint defendants, and there are entered on the fi. fa. stated sums as paid by one of the defendants to the plaintiff, followed by an entry, “This fi. fa. paid in [798]*798•full . . by [the named defendant] to” the named plaintiff, all signed only by the clerk of the court, the entries are not sufficient to form a legal basis for a subsequent levy by the sheriff on property of one of the defendants at the instance of the defendant making the alleged payments, under the provisions of the quoted code section requiring such payments to be entered upon the Ji. fa. The judge of the. superior court, therefore, did not err in dismissing the levy, upon'the affidavit of illegality. As the levy was illegal for the reason stated, it is unnecessary to determine the additional grounds of illegality urged, or whether, if the entries of payment had been signed by the plaintiff in fi. fa. or a proper officer, they would have supported a valid levy, even though no written transfer, sufficiently indicating the amount of the payment, had been procured from the plaintiff in fi. fa. or from one duly authorized to collect the fi. fa. for him.

Decided April 18, 1925. J. G. Newsome, for plaintiff in error. M. L. Felts, contra.

Judgment affirmed.

Stephens and Bell, JJ., eoneur.

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127 S.E. 795, 33 Ga. App. 797, 1925 Ga. App. LEXIS 726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilcher-v-williams-gactapp-1925.

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