Williams v. Chambers , 140 Ga. 859 ( 1913 )

Beck, J.

Under the facts of the case the court did not err in refusing to strike the answer of the respondent. The plaintiff was not entitled to a rule absolute against him. While it may be true that under the levy of the mortgage fi. fa. the property was in custodia legis, although the sheriff permitted the defendant in fi. fa. to retain possession of the property, and that a levy of the fi. fa. issued from the justice’s court and a sale thereunder would have been void (the constable having no right to seize under another fi. fa. the property which the deputy sheriff had previously levied upon) had the plaintiff in fi. fa. not interfered with the course of the law, still, when the plaintiff himself, who had the right to control the fi. fa., granted a stay of proceedings, he thereby interrupted the ordinary and usual course of proceedings under the law. When the levy of the mortgage fi. fa. was made, and the property was not replevied, and no defense to the mortgage fi. fa. was filed, it-was the duty of the levying officer, of course, to proceed without 'delay to bring the property to sale; and had this course been taken, the constable would have had no right under the law to levy a fi. fa. issued from the justice’s court upon this property. But when the plaintiff himself granted a stay pf proceedings, which he had a right to do as between himself and the mortgagor, he could no longer hold off other lienholders from taking steps to enforce their liens. The stay which he granted was “until further orders;” that is, until further orders from himself. Had he given orders to proceed before the property was seized by the constable under the 'fi. fa. from the justice’s court, it might be that the usual course of the law would have been resumed, and that then it would have been illegal for the constable to levy the justice’s court fi. fa. upon the property. A stay of proceedings “until further orders” was an indefinite stay. The plaintiff in the mortgage fi. fa: could not indefinitely postpone the right of other lienholders to take steps to, realize upon their liens; and the only step which the plaintiff in fi. fa. in the justice’s court could take at law was to have a levy made and to sell the property thus levied upon. The levy of the fi. fa. from the justice’s court, under the circumstances, was not illegal and void. The plaintiff in the mortgage fi. fa., or his transferee, the plaintiff in error, having knowledge of the approaching sale under the fi. fa. issued from the justice’s court, could have protected his interest under the law; and having failed to do this, we do not think the deputy sheriff should now be penalized.

Judgment affirmed.

All the Justices concur.