Hand, Williams & Co. v. Greenville & Sample , 22 Ga. 476 ( 1857 )

By the Court.

McDonald, J.

delivering the opinion.

The motion made by the late Sheriff to reinstate the dismissed case,, and amend his return thereto, was refused by the presiding Judge, because, having gone out of office, he was not subject to the rule of the Court, and the cases- of Hopkins vs. Burch, 3. Kelly 225, and Jessup vs. Gragg, 12. Ga. R. 263, are relied on as precedents. Those were cases of constables.

[1.] It was certainly the duty of the Sheriff to have made the return to the petition and process as to the party not served. It was the plaintiffs right to have it, and if he refused to make it, he was unquestionably subject to be ruled. The Act of 1813, Gobi, 202, declares that “all Sheriffs, Coroners and Clerks, of any of the Courts of this State, shall at any and all times be subject to the order and rule of said Courts, after they have retired from their respective offices, in such cases and in like manner as they would have been had they remained in office.” This act continues him in office, so far as to subject him to rule, at the instance of any party whom, by official negligence or misconduct, he may have injured, and all acts which he does by order of the Court he performs under his official obligation.

[2.] But that was not the question in this case. The Sheriff moved to re-instate a case which had been dismissed by order of the Court, and to amend his return.

He was no party to the suit. The case was out. of Court, and he had no right whatever to move in it.

The judgment of the Court below must be affirmed.