Franklin, Reid & Co. v. Norton

Montgomery, Judge. The language of section'1970 of the Code is clearly permissive, in our judgment. Were it doubtful, it would certainly work much inconvenience to construe it otherwise. A plaintiff in fi. fa., who has placed his execution in the sheriff’s hands to be levied, may never hear of a conflicting lien fi. fa. until the sheriff sets it up in his answer to a money rule as an excuse for not paying the funds over to the plaintiff moving the rule; and the inconvenience would amount to hardship if, as contended, it would then be too late for the movant to proceed under the section. If, then, the movant in this case.was not obliged to contest the conflicting fi. fa., under the section of the Code referred to, could he attack Norton’s lien in the mode proposed? It is said he could not, because “ the existence of Norton’s lien was a question of fact, and, under the law, could only be determined by a jury, whereas the sufficiency of a sheriff’s answer to a rule is a question which, under the law, is determined by the presiding Judge.” Non oonstat that it was a question of fact. It was created orally, and its terms were what was sought to be shown by the proposed cross-examination. These shown, and there being no dispute as to what they were, it would have been a question of law as to whether a factor’s lien was created or not. I gather from the bill of exceptions that no issue of fact was proposed to be raised by the cross-examination. The plaintiffs sought to cross-examine “for the purpose of showing that the said contract or understanding did not amount to a lien.” Besides, if the Court had found facts involved, he could have directed an issue to be formed and referred the parties to a jury: Foster vs. Rutherford, 20 Georgia, 668; Code, 3878. That the movant of the rule had the right to attack the lien of Norton in the manner proposed, is established by this Court in its ruling upon the analogous case of an attack permitted on a mortgage after the foreclosure, in a contest between the mortgage fi. fa. and others — claimants, or general judg [646] ment creditors: Williams vs. Martin, 7 Ga., 377; Johnson vs. Crawley, 22 Ga., 348. Nor is an attack a collateral one on the judgment, as in the last case it is called in language somewhat inaccurate. The attack is direct: Kelsey & Halstead vs. Wiley, Parish & Company, 10 Ga., 371, see page 381. Judgment reversed.