Craven v. Martin

Beck, J. In view of the elaborate discussion of. the question here involved which is to be found in the cases of Hollis v. Lamb, 114 Ga. 740 (40 S. E. 751), and Oliver v. James, 131 Ga. 182 (62 S. E. 73), no further discussion is necessary here. It is proper, however, to call attention to the fact that this ease falls within that class of eases where the entry on the execution and on the execution docket was relied on, instead of “bona fide attempts to enforce the same against the defendant within the stated period,” to prevent dormancy of the fi. fa. Had it appeared from the record, by evidence duly submitted on the trial of the case, that there had been, within the statutory period, bona fide attempts to enforce the fi. fa. against the property of the defendant, then a different question would have been made. It is true that there is on the fi. fa. itself an entry of a levy and of written notice given to the defendant of the levy. But this, after all, is a mere entry; and such entries, without some further showing as to the actual seizure of property or of a bona fide public effort on the part of 'the plaintiff in fi. fa. to enforce his execution in the courts at such times and periods that seven years will not elapse between such attempts, or between such attempts and a proper entry, will not suffice to keep the execution alive. There is nothing in the record to show, beyond the entry itself, that the notice was given to the defendant, or that a claim was filed by the defendant within seven years. The claim filed in this case was not in the record as originally transmitted to this court from the superior court; but under the authority given in the Civil Code, § 6149 (4), this court directed the clerk of the superior court of Habersham county to certify and transmit the claim filed in the case; and in compliance with the order the claim was duly certified and transmitted. Hpon examination of the same it appears that the claim was not filed until December, 1910. Consequently there is no sufficient evidence of any bona fide attempt to enforce the judgment against the defendant within the statutory period, and the court did not err in [653] holding that the fi. fa. was dormant. And so bolding, a new trial was properly granted. Judgment affirmed. ATI the Justices concur.