O'Pry v. Kennedy

Bleckley, Chief Justice. 1. The code, §3646, declares that where any sheriff shall levy an execution' upon articles difficult and expensive to transport, he may sell the property without carrying to and exposing the same at the court-house door on the day of sale. The levy in this case being made upon a planing-ma'chine, the officer was relieved by this statute from the duty'of having the machine present at the time and place of sale. But there is no hint in the statute of any purpose to excuse him for not keeping the property in his possession or under his control. It was removed before the day of sale-without his knowledge or consent, but there is no suggestion that the plaintiff in execution or his attorney was in any way connected with the act of removal. The duty and risk of preventing removal rested upon the officer; the machine was in his legal custody, and if, through his omission of due care and diligence, he lost control of it and for that reason failed to sell it, he is answerable [667] to the plaintiff for its value, or for the amount of the execution if the amount-is less than such value. 2. The rule nisi described the execution, specified the principal, interest and cost, recited a levy upon personal property and required the officer as deputy-sheriff of Bibb county to show cause why he had not made the money, and why the rule should not he made absolute and attachment issued against him. This was a virtual, though an indirect, allegation that the plaintiff had sustained damage to the full amount of the execution, by the officer's default. No objection by demurrer or otherwise, for the want of certainty or directness in its allegations, was made to the rule. The officer answered it, admitting the levy and justifying his failure to sell, but not suggesting that the value of the property was .less than the amount of the execution. The plaintiff traversed a material part of the justification set up in the answer, the traverse was tried by a jury and a verdict was rendered in favor of the plaintiff.' After all this it was too late to object to the terms of the rule as uncertain iu any material respect. Brannon v. Central Bank, 18 Ga. 861. The rule afforded fair notice that the plaintiff sought a rule absolute for the whole debt recited, and the sole defence presented by the answer was that the only property accessible to the officer at any time was the planing-machine which he had seized, and that he was in no fault for not selling it. He set up various facts and circumstances to justify his failure to sell, but did not allege that the machine was of less value than the amount of the execution, or of what value it was. He made no question and tendered no issue on that subject. By failing to do so, he virtually admitted that he had no excuse for not realizing the money due on the execution except that presented, namely that without his fault the property seized was not brought to sale. If it was worth less than the [668] amount of the execution, that, together with the fact that there was no other property, would have been a defence to the rule as to all excess of the execution over and above the value of the machine. But he could not offer a false defence to the whole rule and keep back a true defence to a part of it. If he had both a false and a true defence, one going to the whole cause of action and the other to a part, he should have presented both together, if he intended to rely upon both. By electing to rely upon one alone, he waived the other. After a verdict was rendered against him on the traverse of his answer, he stood convicted of making a false return to the rule nisi, and there was certainly no abuse of discretion by the court in making the rule absolute for the whole amount of the execution. It may be that the court, had it been so disposed, could, as mere grace and indulgence, have inquired further into the facts before passing final judgment, but there was no legal obligation resting upon it to do so. 3. We have already said that, if a party has two defences, one going to the whole cause of action the other to a part only, he must present both together. This he can do by adding one to the other at any stage, so long as the facts of the case are open for trial. But unless there is to be more than one trial in one and the same case, the right'of amendment, so far as alleging any facts is concerned, must be limited by the rendition of a verdict final in its nature. The court did not err in declining to allow the officer to amend his answer by alleging that the machine was only of a certain value which was less than the amount of the execution. This allegation could have been traversed, and if traversed, another trial would have been necessary. After an adverse verdict on the matter of this amendment, a second amendment might have been offered, and so on indefinitely. Unless the first trial and verdict are to [669] terminate the pleadings on the facts in controversy, the altercations of the parties may go on without limit. 4. Nor was it error to refuse to allow the officer after verdict to raise the question, by amendment to his answer or otherwise, as to his official relation to the superior court and its jurisdiction over him. By the act organizing the city court of Macon, the sheriff of Bibb county is made ex officio sheriff of the city court, and is given power to appoint a deputy or deputies, with the consent of the judge of that court. Acts of 1884-5, p. 472. It may be that a deputy so appointed is not de jure a deputy-sheriff of Bibb county. But whether so or not, after he has acted as such and responded to a rule against him brought in that character, and a verdict has been rendered upon a traverse of his answer, it is altogether too late for him to remember for the first time that he is not a deputy-sheriff of the county, but only of the city court. 5. That a rule nisi for attachment may be embraced in the original rule nisi and need not be repeated after a rule absolute has been granted, is well settled. Smith v. McLendon, 59 Ga. 528; Wheeler v. Thomas, 57 Ga. 161; Brannon v. Central Bank, 18 Ga. 361. Judgment affirmed.