Baker vs. Bower.

D. A. Baker, plaintiff in error, vs. G. M. T. BOWER, defendant in error.

1. When a sheriff was notified in writing that an execution placed in his hands was founded on a debt which was for the purchase money of land claimed as a homestead, and, having failed to make the money, was ruled for the amount of the execution:

Held, That the sheriff was liable to be ruled for the value of the land he was notified to levy on and sell, that being the extent of the injury which the plaintiff sustained by the failure of the sheriff to perform his legal duty; and that the rule should have been made absolute against him for that amount, and not for the amount due on the execution, if that exceeds the value of the land.

2. The resolution of the General Assembly prohibiting the levy of and sale under executions founded upon debts contracted prior to June, 1865, is not a good excuse for a sheriff who failed to collect the money on such execution. (R)

Rule against Sheriff Relief. Homestead. Before Judge GREEN. Newton Superior Court. March Term, 1871.

In 1859 Henry Camp, as trustee of Sarah A. Camp, and James D. Johnson, as security, gave a promissory note to A. P. G. Harris, reciting in it that it was "for the land late residence of West Harris, deceased." A. P. G. Harris sold this note to Baker. Johnson died and Pace administered on his estate. Baker had sued and obtained judgment on said note; it became dormant, and was revived in December, 1869. In April, 1870, a fi. fa. was issued. On the 16th of May, 1870, plaintiff's attorney delivered to Bower, the sheriff, a written order "at once to levy the fi. fa. on the land adjoining (him) you, that purchased of.................. Harris, and now in possession of said Henry Camp and family, the judgment and fi. fa. being for the purchase-money of said land. In default I shall seek to execute the law."

On the 29th of July, 1870, Bower levied the fi. fa. on said land, stating in the levy that it was done under said order. On the 4th of August, 1870, Camp, as trustee, made affidavit that he desired to take the benefit of the

Baker vs. Bower.

Relief Act of 1868. Thereupon, Bower suspended proceedings. Plaintiff's counsel ruled him for the money. He answered that he made said levy under said order, as aforesaid, and, when about to advertise the land for sale in September, received said affidavit and stopped proceedings, because he was advised and believed it was his duty, so to do, and returned the papers to Court, that the relief matter might be disposed of. Further, he said that when said order to levy was given there was in existence a resolution of the General Assembly prohibiting the levy on and sale of property under any fi. fa., founded upon a debt contracted prior to the 1st of June, 1865, and he could not, without disregard of said resolution, sell said property. He notified plaintiff's attorney that he would proceed, if he would give to him a bond of indemnity to protect him for selling the property. Further, he answered that said property had been set apart by the Ordinary as Camp's homestead. At the hearing, the plaintiff's counsel put in evidence the original note, etc., aforesaid. The Court discharged the rule, and that is assigned as error.

CLARK & PACE, for plaintiff in error.

JOHN J. FLOYD, for defendant.

WARNER, Judge.

This was a rule against the sheriff, calling on him to show cause why he should not pay to the plaintiff the amount due on an execution against the defendant, or be attached for contempt in failing to execute the process of the Court. The sheriff in answer to the rule showed for cause that the defendant, on the 4th of August, 1870, filed an affidavit under the provisions of the Act of 1868, for the relief of debtors, and to adjust the same on principles of equity, the note on which the judgment was rendered bearing date prior to the 1st June, 1865. The judgment on which the execution is

Glenn & Son vs. Shearer.

sued is dated 29th September, 1869, that there was a resolution of the General Assembly prohibiting the levy and sale of property under execution on debts contracted prior to 1st June, 1865, and that the property of the defendant has been set apart as a homestead. It appears in the record that the execution was placed in the sheriff's hands on the 16th of May, 1870, by plaintiff's attorney, with written notice that the debt on which the judgment was founded was given for the purchase-money of the land on which he was directed and required to levy the execution, that the sheriff levied the execution on the land as required by the notice, on the 24th of July, 1870. The rule was moved for against him in March, 1871. On hearing the rule and the sheriff's answer, the Court discharged the same, and the plaintiff excepted. The Court, on the statement of facts disclosed by the record, should have made the rule absolute against the sheriff for the amount of the value of the land which he was notified to levy on and sell, that being the extent of the injury which the plaintiff has sustained by the failure of the sheriff to perform his legal duty, and not the amount due on the execution, if that shall exceed the value of the land. The Court below erred in discharging the rule against the sheriff.

Judgment reversed.

L. J. GLENN AND SON, plaintiffs in error, vs. WILLIAM SHEARER, defendant in error.

1. When it did not appear in the record that written notice of the sanction of a certiorari had been given as required by the 3987th section of the Code:

Held, That the certiorari was properly dismissed.

2. There will be no reversal of a judgment, if it was right, upon any ground apparent from the record. (R.)

3. It is a sufficient assignment of errors to recite the facts upon which

Glenn & Son vs. Shearer.

certiorari issued, then state that the Judge dismissed the certiorari, and assign that dismissal as error without more. (R. See end of report.)

Certiorari. Practice in Supreme Court. Before Judge HOPKINS. Fulton Superior Court. October Term, 1870.

At October Term, 1867, of the Justices Court of the 1026 District, Georgia Militia, L. J. Glenn & Son obtained a judgment against Charles Shearer. In February, 1869, they garnisheed Wm. Shearer on said judgment. He answered that he owed Charles Shearer nothing, etc., and his answer was traversed. This issue came on for trial before B. D. Smith, Notary Public and ex officio Justice of the Peace for the same district, who had issued the garnishment. He dismissed it upon the ground that he had no jurisdiction over it, inasmuch as the judgment was not obtained before him. L. J. Glenn & Son sued out a certiorari, but gave no notice of its sanction to the other party. "After argument had, the Court dismissed the certiorari and gave judgment for defendant for costs of suit; to which action, decision and judgment of the Court plaintiff excepts and assigns the same as

error."

The bill of exceptions specified no error except as aforesaid. When it was called here a motion was made to dismiss it because it did not sufficiently specify the error complained of. The motion was overruled.

SIDNEY DELL, for plaintiffs in error. The Justice's Court and the Notary Public's Court is the same Court: Constitution of 1868, Article V., 51, section 6; Article XI., section. 8. If not so jurisdiction is concurrent: Constitution 1868, Article XI., section 8.

HENRY JACKSON & BROTHER, for defendant.

WARNER, Judge.

Woddail vs. Holliday.

This was a certiorari from a Justice's Court, and on the hearing thereof in the Superior Court the certiorari was dismissed, but on what special ground the Court dismissed it does not appear. On looking into the record it appears that the certiorari was sanctioned by the presiding Judge on the 5th day of March, 1869. There is no evidence in the record of any written notice having been given of the sanction of the writ of certiorari as required by the 3987th section of the Code, and therefore the certiorari was properly dismissed by the Court below on that ground. In Turner vs. Collins, 8th Georgia Reports, 252, this Court held, that it was the uniform determination of the Court not to look out of the papers to inquire into any fact, but whatever fact there appears will be taken to be true, and if it does not appear in writing, it does not exist. The certificate of the Judge to the bill of exceptions is the writ of error to bring up a case from the Superior Court to this Court, and the ten days' notice of the signing and certifying the same has always been required to appear on the record. The sanction of the certiorari by the presiding Judge is the writ of error which brings up the case from the Justice's Court to the Superior Court, and the written notice of such sanction should appear on the record, otherwise, it will be presumed not to have been given.

Judgment affirmed.

NANCY WODDAIL, administratrix, plaintiff in error, es. AUSTIN & HOLLIDAY, defendants in error.

1. When the evidence is conflicting, and there is sufficient evidence to support the verdict, and no error in the charge of the Court which might probably have produced a different result, this Court will not