Ellis v. Atlantic & Gulf Railroad

Bleckley, Justice. 1. Assuming that by reason of the suspension of the statute of limitations, there was no diligence required as to this particular execution until July 21st, 1868, (when the constitution of that year took effect,) the time within which the first seven years began to run would be that date, and as the return of July 17th, 1875, was a little before the seven years expired, there was no dormancy, if that return can be held an entry by the proper officer within the meaning of section 2914 of the Code. Now, the only special feature in the return is that it declares that no property had been pointed out, instead of saying that none was found. It is signed by the sheriff, and there is no possible doubt that he is the proper officer. If the return had been. in the usual form of nulla bona, there would be no question of its sufficiency; the departure from that form is the novelty, and the point to which our attention has been called. But suppose the sheriff did not make the exact answer to the command of the process which he ought to have made, does this keep the answer which he did make from being an entry or return by the proper officer % The command was to levy and collect; the answer was: “No property pointed out on which to levy this fi. fa.” The answei*, such as it was, was entered upon the fi. fa., and was intended (we may presume) as a return by the sheriff who signed it. It might not have protected him against a rule for the money, but it serves to show that he treats the execution as vital and active, and as requiring some response from him to the court from whence it issued. It prevented' dormancy from taking place at any time after the suspen [364] sion of the statute of limitations ceased, the levy having been made within seven years after the return. 2. But unless the suspension included this execution and protected it until July 21st, 1868, so as to make that date the starting point of the first seven years within which an entry or return was required, the return of July 17th, 1875, was too late, as the sheriff’s receipt for costs (which could be treated, no doubt, as a return — see 42 Ga., 212, 269,) being dated November 23d, 1861, would operate to save dormancy only till November 23d, 1868, leaving nothing to cover the interval between that time and July 17th, 1875. Inasmuch as the judgment in this case was rendered prior to June 1st, 1865, it is unaffected by the limitation act of 1869; and, as we stated in Turner vs. Grubbs, 58 Ga., 279, we think that as to it the limitation laws were suspended during the war, and up to the establishment of civil government in July, 1868. We consider the point fully settled by McLaren vs. McCarty, 53 Ga.,41. See acts of 1861, p. 60. Judgment affirmed.