Wyatt v. Chapman

Speer, Justice. This claim case being on trial at the November terrii, 1880, of Lee superior court, when plaintiff tendered in evidence the fi. fa. in favor of Wyatt vs. Callaway and others which was levied on the property in dispute, claimant pioved to dismiss the levy on the property of [728] claimant on the ground that at the time the levy was made there was a claim case pending in Lee superior court to a levy of said■ fi. fa. previously made on property of Hillsman, and there was no order of court authorizing plaintiff to withdraw said fi. fa. and proceed against other property, and moved to be allowed to sustain the facts in his motion by introducing evidence before the court. Counsel for plaintiff objected, which was overruled by the court and plaintiff excepted. The court heard the testimony. The evidence showed that the fi. fa. was levied in January, 1875, on certain cattle, by the sheriff of Dougherty county, in the possession of Hillsman, who interposed his claim to the same on — January, 1875, and delivered his claim to the sheriff of Dougherty county; that the sheriff of Dougherty returned the fi. fa. and claim papers to the sheriff of Lee county. After this, and before the claim papers were returned into court, plaintiff caused the fi. fa. to be placed in the hands of the sheriff of Sumter county, and the levy was made on the property now claimed. The fi. fa., with the claim papers,were then re delivered to the §heriff of Lee county, who returned the fi. fa. and both claims to the next term of Lee superior court, as required by law. After hearing the evidence and argument thereon, the court sustained the motion of claimant’s counsel to dismiss the levy, to which judgment plaintiff excepted, and assigns the same as error. The question is, was the judgment of the court right in dismissing this levy because, after a former levy and claim interposed thereto, and before the claim papers were returned to the court, the sheriff did execute the process anew by a further levy? In the 19th Ga., page 161, this court say: “After a fi.fa. has been levied, a claim - interposed under our laws, and returned to court, the sheriff has no right to withdraw the execution at his pleasure; but the same must be withdrawn (if at all) by leave and order of the court, granted in his discretion.” This decision is again affirmed in 54 Ga., 587. [729] In 55 Ga., 399, this court has also held “that the filing of a claim is the commencement of the suit.” In both of these cases cited the claim papers had been returned into court, and had to be ■<withdrawn to execute the process further. In the case now before us the evidence shows that the papers had never been returned into court; they were in the hands of its officer, and we see no good reason why, at the pleasure of plaintiff, the same might not be re-levied. We are not inclined to extend the rule beyond what is already adjudicated in the 19th and 54 Ga. The duty of the court is to facilitate the processes issued to enforce its judgments, and not to throw obstacles in the way of the collection of a debt adjudged to be due. And we are the less reluctant to reverse this judgment from the fact that the evidence shows that, notwithstanding this second levy, there was no delay in the return of the ■claim papers in both cases to the next term of Lee superior court, as the law requires. Our judgment, therefore, is that it is only after the paper is filed in office and becomes a paper there of file, is it necessary to ask and receive permission to withdraw it for the purpose of a re-levy. Let the judgment of the court below be reversed.