Simmons v. Cooledge & Brother

Lumpkin, Justice. It is unnecessary to deal specifically with the numerous questions made in this ease. It turns mainly upon the proposition announced in the first head-note. Section 3648 of the code provides, in substance, among other things, that whenever any process issuing from a superior court is levied on personal property of a perishable nature, or which is liable to deteriorate in value from keeping, or is expensive to keep, and it remains in the hands of the levying' officer because of a failure by the defendant to replevy the same, “ upon the facts being made plainly to appear to the judge of the superior court, or to the ordinary of the county in which such levy is made, during the absence of the judge of said superior court,” it shall be his duty to order a sale of the property; provided, “ that no judicial officer shall grant any order for the sale of personal property where the defendant in fi. fa. or other process, or his attorney, has not had at least two days’ notice of applicant’s intention • to apply for such order, which notice shall specify the time and place of hearing.” 52 The question is : whether, in the absence of the judge of the superior court from the county, the judge of another judicial circuit has the authority to grant an order of sale under the provisions of this section; or is such authority then confined to the ordinary of the county in which the levy is made ? It was insisted that the non-resident judge had such authority by virtue of sections 247 and 248 of the code. The first of these sections, after declaring that judges of the superior courts have authoi’ity in various matters not pertinent to the present inquiry, provides generally, in paragraph 6, that they may “ exercise all other powers necessarily appertaining to their jurisdictions, or which may be granted them by law.” The next section declares that “ The authority granted in the preceding section to each judge in his own circuit, may be exercised by any judge of another circuit whenever the resident judge is absent from the circuit,” etc. While the language authorizing judges of the superior courts to exercise all powers “ which may be granted them by law ” would probably be broad enough to include the power mentioned in section 3648, and consequently, to authorize a non-resident judge to exercise that power in the absence of the resident judge, if that section had not distinctly provided upon whom the exercise of this authority should devolve in case of such absence, we are of the opinion that, by deliberately conferring this power upon the ordinary, the legislature meant to declare that he, and he alone, should act when the judge of the superior court whose circuit embraced the county of the levy was away from that county. Section 3648 of the code became a part of our statute law long after the adoption of sections 247 and 248; and it is hardly probable that, in enacting the law embodied in section 3648, the legislature had in mind that they were conferring upon a judge of the superior court authority to grant outside of his circuit an order for the speedy 53 sale of personal property, because of the broad and very general provisions in sections 247 and 248 which we have already pointed out. Certainly there was no express intention to extend the authority conferred by section 248 to cases arising under section 3648. It is far more reasonable to conclude that it was intended to grant authority to order such a sale, to an officer who would most probably be always* at hand during the absence of the resident judge. At any rate, it was distinctly declared that, in the absence of the judge of the superior court from the county, the ordinary should attend to this business; and there being no intimation of a purpose to authorize or allow any other judicial officer to attend to it, we think the section confers the authority upon the ordinary when the resident judge of the superior court is absent from the county. It follows from the foregoing that the sale by the sheriff, at which the defendants in error became purchasers, was void and passed no title to them, it having been made under an order granted by the judge of the Stone Mountain circuit, who had no legal power to grant the same. In view of the provisions of section 3648, recited in the beginning of this opinion, it cannot be doubted that even if the order had been granted by an officer vested with full authority in the premises, it should be made to affirmatively appear that the two days’ notice of the applicant’s intention to apply for the order of sale was duly given, unless the case be one which falls within some of the exceptions specified in that section where, in the sound discretion of the judge, a sale may be ordered without notice. Judgment reversed.