Benson & Coleman vs. Dyer

Supreme Court of Georgia1882-11-28

69 Ga. 190

Summary · law.co

Holding. The court affirmed the judgment, holding that a levy on property in the possession of a third party is lawful even without affirmative designation by the creditor, and that the justice of the peace's failure to record an officer's return of service does not render the underlying execution invalid, though the justice retains authority to correct the omission upon proper showing.

This case involves a challenge to the validity of a levy and execution issued by a justice of the peace in a debt collection matter. The plaintiff challenged both the legality of the levy itself and the underlying judgment on which the execution was based. Regarding the levy, the court held that a sheriff or constable is not limited to seizing only property belonging to the defendant; property held by third parties may be lawfully seized without requiring the creditor to affirmatively point it out beforehand. The law presumes a levy is legal once made, and the burden falls on the challenger to prove otherwise.

On the second issue, the claimant objected to the judgment's validity based on the justice of the peace's failure to record the officer's return of service on the docket, as required by statute. The court acknowledged that while the statute does mandate such entries, the failure to make this particular entry does not automatically invalidate the execution or conclude the creditor's rights. Instead, the justice of the peace has authority to correct such omissions, either sua sponte if it was merely an administrative oversight, or upon the creditor's application and presentation of proper proof that service was actually accomplished.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a levy on a third party's property requires the creditor to affirmatively designate it for seizure
Whether failure to record an officer's return of service on the docket voids an execution
The presumption of legality attached to a completed levy
The justice of the peace's authority to correct ministerial omissions in court records

Procedural posture

The case arose from a certiorari petition challenging errors alleged to have been committed by a justice of the peace during trial of a claim case contesting a levy and execution.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Crawford, Justice.

The questions that came up in this case arose upon the hearing of a certiorari by the court below. The certiorari grew out of the errors alleged to have been committed by a justice of the peace in the trial of a claim case.

x. The first error set forth in the certiorari is, that the levy was illegal, because property in the hands of a party not a defendant in fi. fa. was levied upon for sale, whilst there was sufficient property in the hands of the defendant with which to pay off the debt, and it did not affirmatively appear that it was pointed out by the plaintiff in fi.fa.

Section 3641 of the Code gives the defendant in fi.fa. the right to point out what part of his own property he may think proper, and the levying officer is bound to take it and sell that first, if the same, in his opinion, is sufficient to satisfy the debt and costs; but there is no law which limits the sheriff, or constable, or the plaintiff in fi. fa., to such as may be in the defendant’s possession.

It is the duty of the officer to make the money; and when he has made a levy, the presumption of the law is that it was legally done, unless the contrary appears. It is not necessary to constitute a legal levy of property in the hands of one not a party to the fi.fa. that it should affirmatively appear that the same was pointed out by the plaintiff in fi. fa.

Whilst the pointing out of property by the plaintiff in fi.fa. is an indemnity to the sheriff, it is not essential to the validity of the levy. A claim to property, levied upon in the hands of a third party, is only one of his remedies against the illegal seizure thereof by a levying officer. 60 Ga., 516.

The second error assigned in the certiorari is, that the judgment upon which the fi. fa. issued was void, because the facts necessary to give thecourt jurisdiction to render it do not appear upon the docket as required by law.

Upon the trial of the claim case, the docket of the justice of the peace was put in evidence by the claimant, and upon it appeared the names of the parties, the amount of the principal debt, the amount of the interest, the amount of the costs, the judgment with its date, and the day of the issuance of the fi. fa., but there was no return of the officer as the law requires; and in this failure consists the ground upon which the claimant rested his objection to the validity of the execution.

Section 457 of the Code requires not only those entries which did appear, but entries of the returns of the officer also. When, therefore, they did not appear, and no further proof was offered to show that services had been acknowledged, or that the defendant had been served with a summons according to law, then it was the duty of the court to have dismissed the levy, instead of finding the property subject to the execution.

Under the various rulings of this court, we cannot hold that the failure of the justice to make that entry upon his docket renders the fi. fa. invalid, and concludes the plaintiff thereon. But we think that the justice might, on his own motion, correct it, if it were but an omission on his part, or he might, on the application of the plaintiff in fi. fa., upon proper proofs correct it, if satisfied that service, or the acknowledgment thereof, should have been duly entered, but was neglected.

In the language of Justice Bleckley, in 62 Ga., 683, we repeat that, “ In a justice court local government is realized in its last analysis. This tribunal is our primary, most rudimentary organ of home rule. It is the neplus ultra of judicial simplicity.”