Foster v. Rutherford
Supreme Court of Georgia
Rule against Sheriff in Gilmer Superior Court. Tried before Judge Brown, May Term, 1856. The following cases were heard together: Samuel Rutherford, as the assignee of divers Ji. fas. against Beverly A. Freeman, filed his rule nisi against the Sheriff -of Gilmer County, to compel him to pay over monies in his 'hands arising from the sale of Freeman’s property on said fi. fas.
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Rule against Sheriff in Gilmer Superior Court. Tried before Judge Brown, May Term, 1856. The following cases were heard together: Samuel Rutherford, as the assignee of divers Ji. fas. against Beverly A. Freeman, filed his rule nisi against the Sheriff -of Gilmer County, to compel him to pay over monies in his 'hands arising from the sale of Freeman’s property on said fi. fas. Counsel for plaintiffs, in several junior fi. fas. proposed to tender an issue in each case, alleging the payment of Rutherford’s fi. fas. and demanded a separate trial on ■each issue. The Court over-ruled the motion,…
1Opinion of the Court
By the Court.
Lumpkin, J,
delivering the opinion.
[1.] Was the Court right in refusing to order the fund in 'Court to be paid over to Samuel Rutherford ?
We think so. Only one plaintiff ia.fi. fa. had been heard. It is true, the issue of payment tendered by him was found for Rutherford. But the other judgment creditors were neither parties nor privies to this proceeding, and were entitled to their day in Court.
Under the circumstances, the Court was not warranted, perhaps, in directing, peremptorily, all the other judgment creditors to unite in tendering an issue. Every man must have the privilege…
2Cited by3 opinions
- Berrie v. SmithSupreme Court of Georgia · 1896
- Mattox v. BarrySupreme Court of Georgia · 1911
- Golfland, Inc. v. ThomasCourt of Appeals of Georgia · 1963