Holcombe v. Dupree

McCay, Judge. 1. This Court, in two cases, has decided that rules absolute against the sheriff for contempt, do not stand altogether like judgments between parties. They do not operate as estoppels, but the Court, upon a proper case made, will go behind the order and look into the truth of the case : See Chipman vs. Barron, 2 Kelly, 220, 15 Georgia, 182. As the sheriff’s answer is not traversed, it is to be taken as true. If it be true, he never was in contempt. His failure to execute the process was by reason of a written order of the plaintiff not to do so. The rule absolute was taken by consent and with a definite purpose other than to treat the sheriff' in contempt. There was, too, a special agreement not to press it against the sheriff. This was, in fact, a fraud upon the sheriff. In an ordinary judgment the sheriff would, perhaps, be estopped by the judgment from setting up, at least, by parol, that the judgment was not to be enforced. But, as we have said, rules absolute do not operate as an estoppel. They may be looked to by the Court in its discretion, and re-examined. In truth, they depend for their validity on the fact that they are the punishishment of the Court for its officer, for contempt, and it is only collaterally that they are for the benefit of the party. The Court, if the sheriff be not in fact in contempt, will re 339 lieve him from its order. In this ease the parties have, by agreement, -without consulting the Court, taken its extraordinary process out of its hands. This cannot be done so as to deprive the Court of the right to open the case and look into the facts. In other words, there is no estoppel, no reason why the truth should not be known and acted on. 2. As we suppose, it was only because of this supposed estoppel, res adjudieata, that the demurrer was sustained, we reverse the judgment. If the statement of the sheriff be true, it would be a great wrong to make him payjhis money. Judgment reversed.