Biggers v. Winkles

LuMPKIN, J. (After stating the facts.) 1. One of the duties [991] ■of the clerk of the superior court as declared by the code of this State is “to issue and sign (and attach seals thereto when necessary) every sunknons, subpoena, writ, execution, process or order, or other paper under the authority of the court.” Civil Code, §4360(4). He may appoint a deputy or deputies, who shall take the same oath as the clerk, and “whose powers and duties are the .sanie as long as the principal continues in office, and not longer.” §4359. Process signed by a deputy clerk of the superior court is as valid and sufficient m law as if signed by the principal clerk. Goodwyn v. Goodwyn, 11 Ga. 178; Dever v. Akin. 40 Ga. 423; Graves v. Warner, 26 Ga. 620. When what purports to be the signature of the clerk to an execution is not affixed thereto by him or by his authority, the execution is not legally issued. Williams v. McArthur, 111 Ga. 28. The deputy could have signed the execution in his own name as deputy. Put was it lawful for him to sign the name of the clerk, and was the execution so issued a lawful execution? In Ellis v. Francis, 9 Ga. 325, it was held that where a constable who wrote a bad hand requested a justice of the peace in his presence to make a return of “no property” on two justice’s court executions, he knowing the return to be true of his own personal knowledge, it was considered as his act and valid in law. See also Cox v. Montford, 66 Ga. 62. In Weaver v. Wood, 103 Ga. 88, it was said: “ While an entry may, in the immediate presence and by the direction of the levying officer, be made upon an execution by another who acts as a mere scrivener or clerk, and while an entry made under such circumstances may be upheld as the act of the officer himself, and thus protect the judgment upon which it issued from becoming dormant, yet such officer has no power to delegate to another the authority in his absence, either generally or in a special case, to perform for him, or in his name, this particular act which the law requires him personally to perform.” In the opinion it ivas said that it would not be wise to extend the rule further than was laid down in the cases of Ellis and Cox, supra. In Horton v. State, 112 Ga. 27, it was held that where an’ attorney signed the name of the clerk to a subpoena under .a general direction from that officer to prepare the subpoenas in the case, it was not valid. In MacKenzie v. Jackson, 82 Ga. 80, one of the headnotes reads as follows: “While it may be true that a deputy clerk may perform any duty which the clerk is authorized [992] to perform, it seems that, when the deputy clerk certifies, he must certify over his own signature, and not over that of the principal clerk.” In the opinion the same language is used, except that instead of the words, “it seems that,” the words employed are, “we are inclined to think that.” This was said where the deputy clerk signed a certificate with the name of the clerk by him as deputy, which makes a much stronger ease than if he had simply signed the name of the clerk only; as he did in fact add to the name of his principal his own name as deputy, a method of signing which we understand to be practiced in some courts. Speaking for myself, it seeihs to me that it might be argued with much force that for a deputy to sign the name of his principal, by him as deputy, was a sufficient signature, by analogy to the manner in which an attorney in fact signs for his principal. In Hitchcock v. Latham, 97 Ga. 253, where objection was made to the introduction in evidence of a tax execution, on the ground, as alleged, that the name annexed thereto, purporting to be that of the tax-collector, was “in printing as it came from the printing office,” and therefore that the execution did not bear the genuine signature of the tax-collector, and there was nothing to show when, where, or how his name had been affixed to the execution, but it affirmatively appeared that the paper had come into the sheriff’s hands and that he had acted upon it as a legal execution, and in so doing had levied on, advertised, and sold land, it was held, that, in the absence of further proof on the subject, it would be presumed that the printed signature was authorized by the tax-collector, and that he issued the execution as his official act. In that case the question arose in an action of ejectment brought by the purchaser at the sheriff’s sale. In the case before us, if nothing more had appeared than that the execution came from the office of the clerk of the superior court and had been received by the sheriff and treated by him as a genuine execution, probably a similar presumption would have^ arisen. But the evidence went further and disclosed that the signature of the clerk was not made by him, but was made by one acting as a deputy, under general authority from him to issue executions and sign his name to them, and apparently the clerk had nothing to do with it. This was neither an action by the deputy in the manner in which the law authorizes him to act in place of his principal, nor was it a lawful signature under the general verbal authority given by the [993] clerk. In Newman v. State, 101 Ga. 534, 539, tbe question was whether it was necessary to the validity of a special presentment for the solicitor-general to sign it. It was ruled not to be so, and what was added as to verbal authority to sign was unnecessary to the decision. In Alabama a different rule seems to prevail. McMahan v. Colclough, 2 Ala. 70; Kyle v. Evans, 3 Ala. 482. Mr. Freeman, after referring to these cases (1 Free. Ex. (3d ed.) §23), says: “But it seems to us that a general authority to issue execution can not be delegated except where the lavf authorizes the appointment of a deputy and such appointment has been made; and that the cases referred to go no further than to sustain executions issued so directly under the eye and control of the officer that they must be treated as his acts.” In some of our more populous counties many executions are issued, and it would be an exceedingly dangerous practice to have them signed, not by the clerk or by a deputy as such, so that on their face they would show by whom they were signed, but by any person to whom the clerk might give oral authority to sign his name in his absence, or for them to purport to be signed by the clerk in different handwriting. If there be any such practice in any county or counties in this State, as was contended, it is “a custom more honored in the breach than the observance,” and should not be followed further. The court correctly excluded the execution from evidence. On the general subject see Pierce v. Hubbard, 10 Johns. (N. Y.) 404; Shepherd v. Lane, 2 Dev. L. (N. C.) 148. Judgment affirmed. All the Justices concur.