Franklin v. Smith

McCay, Judge. 1. For myself, I am not prepared to say that the facts of this case show any liability on the part of the sheriff. He has simply obeyed the law. I am aware that it is said this law is not constitutional, but this Court has, on several occasions, held the contrary: See 38 Georgia, 350; 40 Ibid., 49. The Act does not require the affidavit to set forth the specific grounds of the equity. It is the duty of the defendant to do this at the first term, and if he fail, the affidavit will be dismissed. Here the plaintiff has permitted the case to stand, undisposed of; the first and several other terms, to pass without any statement in detail, by the defendant, of his equities. This was no fault of the sheriff, but is the fault of the plaintiff— a fault, too, which, even if the sheriff would have been liable at the first term, has greatly increased the sheriff’s risk. 2. But even if the Act were unconstitutional, we are not prepared to say that the sheriff is guilty of contempt, for failing, under an ordinary process, to disobey it. Whether an action will lie, is not the question. Is he in contempt of the process of the Court? Ought he to be punished for obeying an Act of the Legislature, at the time recognized by the Courts as valid? We think not. The sheriff is not a judicial officer. It would be a very harsh rule to say that he must, on pain of contempt, decide for himself whether a law is constitutional or not. When a partyseeks to hold a sheriff liable, if he chooses to do so by means of a rule, he takes upon himself to show that the officer is in contempt of the process of the Court, and he submits that question to the sound discretion of the Court. He has a right to his rule absolute only at the sound discretion of the Court, and if the sheriff has not been guilty of contempt, the rule absolute ought not to be passed. It seems to us that it is a shock to all sense of propriety to say that the sheriff is in contempt for failing to disobey an Act of the Legislature. And so the Act of February 25th, 1869, expressly enacts. We are aware that cases may be found where a rule has been made absolute under such circum 115 stances; but it will be found, on looking closely into them, that this point was not made and insisted on. At any rate, we have now an express law on the subject in terms relieving the sheriff from the contempt, if there be any, in all such cases. Judgment affirmed.