Paris v. Citizens Banking Co.

Fish, J. The judge of the county court erred in striking the petition of the plaintiff in the mortgage fi. fas. upon the ground that no parties ivere made or issue formed in the rule proceedings, and the judge of the superior court was correct in sustaining the certiorari and sending the case back to the county court for another hearing. Under section 4776 of the Civil Code, “all persons interested who are notified in writing by [209] the sheriff, or movant, of the pendency of the rule, will be bound by the judgment of distribution.” Such notice makes them parties, and they will therefore be bound by whatever judgment may be rendered. Parties interested may, however, waive the notice which is provided- for their benefit, and come into court and by appropriate pleadings set forth the ground of their claim to the fund. The plaintiff in the mortgage fi.. fas. in this case took notice of the rule proceeding, and was in court with a petition setting forth its claim to the money in the hands of the sheriff, and asking for a judgment directing him to pay the fund to petitioner to be credited on the mortgage fi. fas. We think that such action on the part of this petitioner was as effectual in making it a party to the rule as would have been a written notice of the pendency of the rule given it by the sheriff or the movant. It was alleged in the petition, “that in the discharge of his duties as such clerk the said Sam Paris performed no labor such as would entitle him to a lien under the law, and upon this petitioner prays a judgment of the court.” We are of opinion that this allegation made an issue which would have authorized the plaintiff in the mortgage fi. fas. to have submitted evidence for the purpose of showing that the movant in the rule did not, under his contract of employment, perform such services as would entitle him to a laborer’s lien under the statute. The goods were sold under the ■ banking company’s fi. fas. and the execution in favor of Sam Paris, and it was too late after the sale for the banking company to file a counter-affidavit to the foreclosure of the laborer’s lien claimed by Sam Paris, hut, upon the rule, it could contest with him for the proceeds of the sale in the sheriff’s hands, and-in that proceeding show anything that entitled it to the money, as fully as it could have done in any issue raised by counter-affidavit prior to the sale. Smith v. McPherson, 78 Ga. 84. The judge of the county court did not really pass upon any contest between the banking company’s mortgage fi. fas. and the lien claimed by Sam Paris, but dismissed the petition which sought to bring about such a contest, upon the ground that the petition did not seek to make the banking company a party to the rule proceedings and that no issue was [210] made. As we have already said, it was proper for the judge of the superior court to remand the case to the county court for another hearing. It results that the judgments complained of in both bills of exceptions should be Affirmed. All the Justices concurring.