Horrigan v. Savannah Grocery Co.

Beck, J. (After stating the foregoing facts.) 1, 2. It has been decided by this court that a judgment for attorney’s fees, founded upon a suit on a note or deed containing an [130] obligation to pay attorney’s fees in addition to the stipulated rate of interest, is void where the record shows that the defendant did not appear or plead, and that the instrument sued on was executed before the passage of the act of 1900, which amended section 3667 of the Civil Code. Demere v. Germania Bank, 116 Ga. 317. But, though the judgment for attorney’s fees in the case at bar be void, it does not appear that the execution issued thereon under which the sheriff sold the land was not fair on its face and apparently valid. And had the sheriff violated his agreement to hold the money until the rightful ownership thereof could be judicially determined, and paid to the real estate company the amount called for by the void judgment, it would seem that he would have been .authorized in so doing, being protected by the execution which was .apparently regular and valid (Johnson v. Fox, 51 Ga. 270), although he had aliunde notice of its invalidity. Murfree on Sheriffs, § 103, a; Wilbur v. Stokes, 117 Ga. 545. But how that may be it is not now necessary to decide; for the sheriff himself admits that he had agreed to hold the money until the courts should decide to whom it rightfully belonged, and that he only delivered it to counsel for the real estate company as his depositary. It is true that the officer attempted to correct his testimony in this regard, saying that he did not deliver the money to the attorney to be held in custody for him, but did so upon the assurance that “if he should be legally required to return the amount of attorney’s fees into court, [counsel] would protect him,” thus attempting to establish an actual payment to the real estate company of the amount of the attorney’s fees before the execution of the grocery company came into his hands. And this correction was corroborated by counsel for the real estate corporation. But whether or not these facts would constitute a valid payment need not be decided; for although the question as to whether the court, acting as b.oth judge and jury, believed the subsequent testimony of the sheriff in preference to his written statement is a matter of conjecture, still his judgment was right and was supported by evidence, and it will be presumed that the reasoning upon which he placed his finding was based upon that evidence which properly supported it. We certainly can not say that he did not believe the signed statement of the sheriff, but accepted as true his contradictory oral testimony. Wherefore we hold that-under the evidence the money is still in [131] the possession of the sheriff- — -that in the eye of the law he has never parted with it; and it follows from this ruling that the question of constructive deposit of an execution (argued at length by counsel for the sheriff) does not enter the ease, add the contention that the plaintiff company can not bring a rule against the officer for money which he has paid out upon process fair on its face, before the plaintiff’s lien was deposited with him, is robbed of its support and falls to the ground. “ For whether the constructive delivery of the plaintiff’s execution was such a deposit as the law will recognize or not, the fact remains that immediately after the abortive attempt at delivery by the sheriff of the amount of the attorney’s fees to the real estate company, the grocery company’s fi. fa. was actually placed in his hands, and under its authority he paid to the plaintiff company the balance raised by the real estate company’s judgment, minus the amount of the judgment for the attorney’s fees. 3. But the sheriff contends that the judgment of the plaintiff company is null and void and could not be a lien upon funds in his hands although actually deposited with him. It is true that the judgment of the plaintiff was rendered at the October term of Chatham superior court and that under the law creating that term the case could not be tried until the December term without the consent of the parties. It is also true that the defendant in that action did not consent to a trial at the October term. But this irregularity could not be said to render the judgment absolutely void. The court had jurisdiction of the parties and of the subject-matter; and if it erroneously construed the absconding of Silverberg to amount to a consent on his part that the case could be tried at the October term, such error can not make the judgment absolutely void (although irregular it undoubtedly is) and subject to collateral attack. “The premature entry of a judgment, as, for example, before the expiration of the time to answer, is merely voidable, it is not void and subject to collateral attack.” 17 Am. & Eng. Enc. L. (2d ed.) 1072, and citations. See also Black, Judg. § 181. 4. Nor does the fact that the plaintiff’s judgment is erroneous afford the sheriff any defense for not payings to it the amount of the attorney’s fees. “A sheriff who refuses to collect a fi. fa. because it issued upon an irregular proceeding will not be protected [132] •from a rule ou that ground.” Gladden v. Cobb, 73 Ga. 235. See also Singer Sewing Machine Company v. Barnett, 76 Ga. 377. Indeed, from every avenue of approach the position of the sheriff' is vulnerable. There is no strength in any of his defenses. The grocery company undoubtedly has the equitable claim to the amount in controversy. The real estate company’s judgment is void, and whenever it is attacked, no matter where, it must fall of its inherent weakness. Judgment affirmed. All the Justices concur, except Fish, G. J.,. absent, and Atlcinson, J., who did not preside.