Collins & Son v. Hudson

Jackson, Chief Justice. This was a claim case. The levy was made by the [686] sheriff of Houston county, on land in Macon county, and plaintiffs offered to prove that there was then no sheriff in Macon, so as to bring the case within the Code; but no ■offer was made to amend the levy and insert therein the authority to levy. The levy was dismissed, and the plaintiff excepted. 1. A levy by one without authority is no levy, and sale under it, no sale. 60 Ga., 466. Therefore, as the sheriff showed he had no power to levy, it was null and void. 2. The title of the purchaser ought to show a good levy, because it is a muniment of title, and may be recorded with sheriff’s deed, and go in evidence from the record. True, it might be amended so as to perfect the entry. No effort was made to have it done, and ho reason given why it could not be done. 3. Could it be corrected by parol proof? We hardly think so, unless in cases ^vhere equity would relieve; such as accident or mistake. 53 Ga., 138, 142. That proof would never get on the execution, and the muniment of title would never be perfected. It is best not to allow parol proof, unless a reason to the contrary, from the particular facts of the case, shows the necessity of the parol proof, and that the omission was by mistake or accident of the levying officer. No such proof was made here ; and the dismissal of the levy, while it does conclude the particular case pending, does not ordinarily prevent or bar another levy and trial on the real merits. Even where a judge of the superior court acts on an injunction, it has been held, that if he acts out of his circuit, it must appear of record that he has authority so to do by reason of some disability of the judge of the circuit other than his own, wherein for the time he can legally pass on the application. Presumptions will not do. If not in the case of a judge of the superior court, surely not in the case of a sheriff. 4. The dismissal of a levy does conclude the particular claim case pending; therefore, exception to it will lie, [687] and the case is properly here, and the motion to dismiss the writ of error cannot be granted. Judgment affirmed.