Graves v. Tift

McCay, Judge. This case is controlled by the decision we made in Patillo vs. State last week. The Act of 19th January, 1872, expressly authorizes the Judge of the County Court to issue [124] distress warrants, and there is nothing in the County Court Act for Dougherty, passed in August, 1872, inconsistent with the general law on this subject. The Act of January 19th, 1872, is a general law for the State, except as to the counties excepted. Dougherty is not one of them. The failure or refusal of the grand jury to authorize the appointment of a Judge does not affect the operation of the law in that county, whenever a Judge is otherwise legally appointed. The general law, when not inconsistent with the Act of August, 1872, regulates the powers and duties of the County Judge of Dougherty, as well as the Judges of other County Courts. Nor is there anything in the argument that County Courts are abolished by the Constitution of 1868. The County Courts “then existing,” were abolished; but by section 1st of Article 5th, of the same Constitution, the Legislature is authorized to establish other Courts. We do not think the request to the Judge to retain the case until a new distress warrant would issue, was at all proper. If the warrant was illegal, the levy was void. A new levy would have to be made. The property was not in the hands of the Court. There is no analogy between this case and a case where the money was in Court for distribution. Judgment reversed.