Wilson v. Herrington

Bleckley, Chief Justice. 1. If the tax-execution had been wholly paid off' by Lewis, though this was done pending the claim, his failure to enter the execution on the execution docket of the superior court within thirty days after the transfer made to him by the sheriff would have justified the court in dismissing the levy, for the statute keeps such executions alive as to third persons only on condition that they are so entered. Code, §891(a). Though defendants against whom they are issued will still be affected by such executions where there has been a failure to enter them, claimants of property levied upon are entitled to treat them as extinguished or discharged. Hoyt v. Byron, 66 Ga. 351; Murray v. Bridges, 69 Ga. 644; National Bank v. Danforth, 80 Ga. 56; Fuller v. Dowdell, 85 Ga. 463, 11 S. E. Rep. 773; Clarke v. Douglass, 86 Ga. 125, 12 S. E. Rep. 209. It will be observed that so much of the section of the code above cited as is taken from the act of 1879 relates alone to tax-executions issued prior to February 20th, 1875. The execution now in question was issued in 1889 for State and [779] county taxes of 1888, and consequently is governed by the general terms of the prior statute and not by the special provisions of the act of 1879. 2. But the execution was not fully paid off. There remained due upon it one dollar for costs, and to collect this unpaid balance the tax-collector was entitled to proceed with the levy. He was so proceeding, and consequently the court erred in dismissing the levy because the ji. fa. had been transferred to Lewis by the sheriff and not recorded within thirty days thereafter. The sheriff had no authority to make the transfer, inasmuch as the execution was not paid in full. Lewis is no party to the claim case, nor is he a party in this court. The tax-collector is proceeding to subject the property levied upon, and he has a right to do this so long as anything remains unpaid on the execution. 3. The court having erred in dismissing the levy, the right way to correct the error was to reinstate the ease on motion and set aside the erroneous judgment. This was done at the same term of the court, and there was no error in so doing. The motion made, though very general in its language, was sufficient, the error committed in dismissing the levy -being apparent on the face of the record. 4. The provision of the act of 1885 (Acts of 1884-5, p. 67) requiring tax-collectors to attach' an unsigned receipt to each execution issued for taxes, is directory, and the omission of that duty does not render the execution invalid. A claimant of property levied upon by virtue of an exeeution for taxes is not entitled to have the levy dismissed because no receipt is attached. Judgment affirmed.