Opinion
33814.
DECIDED JANUARY 23, 1952.
Petition to revive dormant judgment; from Putnam Superior Court — Judge Carpenter. August 30, 1951.
Edward E. Dorsey, Powell, Goldstein, Frazer Murphy, Peter J. Rice, George D. Lawrence, for plaintiff.
Whitman Whitman, Martin, Snow Grant, for defendant.
1. The petition to revive a dormant judgment, alleging that the last entry of nulla bona on the execution was filed for record more than seven years from the original record of the execution, but that the original execution was not then re-recorded with all entries thereon, as required by Code § 110-1001, does not show a proper record of the last entry sufficient to prevent the judgment from becoming dormant.
2. The allegations of the petition, showing only nulla bona entries on the execution, the last of which was not properly recorded, do not show such a bona fide public effort to enforce the execution in the courts as would prevent the judgment from becoming dormant.
3. The trial judge did not err in sustaining the demurrer to the petition and dismissing the action.
DECIDED JANUARY 23, 1952.
This was a scire facias proceeding brought on March 27, 1951, by Annie B. Scott against Skelton H. Napier, the administrator of the estate of T. A. Napier, deceased, to revive a dormant judgment. In her petition the plaintiff alleged: that, at the September term, 1924, of the Superior Court of Putnam County, she obtained a judgment against T. A. Napier; that a fi. fa. was issued on said judgment; that the last entry of nulla bona on said fi. fa. was more than seven years old, whereby the judgment on which said fi. fa. was based had become dormant; that none of the debt, for which said judgment was rendered and said fi. fa. issued, has ever been paid; that the defendant in fi. fa. is now deceased; and that Skelton H. Napier has been duly appointed administrator of his estate. A copy of the judgment, rendered on September 17, 1924, and a copy of the fi. fa., issued on September 19, 1924, were attached to the petition.
The petition was amended by adding the following: "That the entry of April 16, 1936, was re-recorded and re-indexed at page 180, in General Execution Docket No. 3 of the records, Clerk Putnam Superior Court; however, all the prior entries on said execution could not be recorded in the provided space in said General Execution Docket No. 3, but instead a notation in red was made with and on the re-recording which notation referred to the page on which the original entries could be found. In so recording the clerk did all that he could do since sufficient space was not available to record all entries made on said execution.
"That the plaintiff has had entries entered on the execution by an officer authorized to levy and return the same . . and the plaintiff has delivered said execution with entries thereon to the Clerk of the Superior Court of Putnam County, the court in which said judgment was obtained, with instructions to place said instrument on the execution docket of Putnam County at such times and periods that seven years has not elapsed between such entries by the sheriff and the recording thereof by the Clerk Putnam Superior Court, said facts being shown by a copy of the entries and recording thereof as has been attached to the proceedings and made a part thereof. However, the plaintiff shows that said judgment is now dormant, but contends that said judgment has been dormant less than three years.
"That the plaintiff has made a bona fide public effort to enforce the execution and that she has had the entries of the sheriff placed on the execution as shown by the facts heretofore stated; that she has presented said execution with entries thereon to be placed and recorded on the General Execution Docket; that the sheriff has made diligent searches and being unable to locate property on which to levy execution he has entered his entries of nulla bona on said execution; that the plaintiff has paid the clerk's and sheriff's costs for recording and nulla bona; that the plaintiff has by her acts shown that she as a judgment [creditor?] was active and the acts of the plaintiff show that the execution was still in life and that such actions were bona fide efforts on the part of the plaintiff to enforce her execution.
"The petitioner has made a bona fide public effort to enforce the execution in the courts at such times and periods that seven years has not elapsed between such attempts or between such an attempt and a proper entry; except that the petitioner shows that more than seven years has elapsed since the last entry on the General Execution Docket; namely, April 2, 1943; but, that between the time of execution, namely, September 29, 1924, and April 2, 1943, no such seven years elapsed between such attempts or between such an attempt and a proper entry.
"That the petitioner has attached to this amendment . . certified copies of all entries on the General Execution Dockets of Putnam Superior Court which concern the judgment which is the subject matter of this petition. Said attachments are marked as Exhibit `C'.
"That all of the entries made by the Clerk of the Superior Court of Putnam County, or his deputies, which are shown on Exhibit C, of this petition, were made in exact accordance with the custom of the said clerk of the superior court and his deputies in making such entries, and that this customary manner of making entries upon the General Execution Docket had obtained and been followed in Putnam County, and in the records of Putnam Superior Court, for many years, probably for as long a time as there has been a general Execution Docket provided by statute; and that this same custom and method of making entries upon the General Execution Docket has been followed for a like period of time by the clerks of the superior courts of the several counties in the Ocmulgee Circuit.
"That no person has been misled by said method of making entries upon the General Execution Docket of the Clerk's office of the Superior Court of Putnam County employed by said clerk, and that no party has suffered damage because of said method of making entries."
Exhibit C, the certified copy of the entries made on the general execution docket, shows the dates of the various entries corresponding to those on the fi. fa. The following appeared in General Execution Docket No. 2, pages not numbered, under letter "N": "Defendant: Napier, T. A. Plaintiff: Mrs. Annie Bowles Scott, nee Miss Annie Bowles. Court obtained in: Putnam Superior Court. Date of judgment: September 17, 1924. Date of execution: Sept. 19, 1924. Principal: $2000.00. Int.: $361.13. Atty's fees: $236.11. Costs: $20.15. Entered on this docket: September 19, 1924. Remarks: Georgia, Putnam County. Due search made, no property to be found on which to levy the within. This the 28th day of July, 1930. J. L. Paschal, Sheriff, Putnam County, Georgia. Rec. July 28, 1930. Irene Vaughn, Deputy C.S.C. (See General Execution Docket No. 3 for Sec. Nulla Bona entry.)" The notation in parentheses was made in red ink.
On page 180 of the General Execution Docket, No. 3, the same information appears, prior to "Remarks," as was shown in book number 2 of the docket. Following "Remarks," are two nulla bona entries, the first made by the sheriff on March 25, 1936, and recorded April 16, 1936, and the second made by the sheriff on April 2, 1943, and recorded on the same day. In red ink then appears the notation, "For original record of Fi. Fa. see General Execution Dkt. No. 2."
The defendant filed general and special demurrers to the petition as amended. The renewed general demurrers were to the effect that it affirmatively appeared from the petition and the attached exhibits that the fi. fa., with all entries thereon, was not re-recorded on the general execution docket of Putnam Superior Court subsequently to the entry of nulla bona on March 25, 1936, and to the entry of nulla bona on April 2, 1943, although each of said entries was filed for record more than seven years from the date of the execution; and also that the facts and acts alleged to show that the plaintiff had made a bona fide public effort to enforce the execution do not amount to such acts as would bar the running of the statute of limitations and prevent such judgment from becoming dormant. The court sustained the general demurrers, and the plaintiff excepted.
1. Code § 110-1001 is as follows: "A judgment shall become dormant and shall not be enforced:
"1. When seven years shall elapse after the rendition of the judgment before execution is issued thereon and entered on the general execution docket of the county wherein such judgment was rendered; or
"2. Unless entry is made on the execution by an officer authorized to levy and return the same and such entry and the date thereof are entered by the clerk on the general execution docket within seven years after the issuance of the execution and its record; or
"3. Unless a bona fide public effort on the part of the plaintiff in execution to enforce the execution in the courts is made at such times and periods that seven years will not elapse between such attempts or between such an attempt and a proper entry.
"The record of the execution made as prescribed in paragraph 1 of this section, or of every entry made as prescribed in paragraph 2, or any bona fide public effort by the plaintiff in execution to enforce the execution, contemplated by paragraph 3, shall institute a new seven-year period within which the judgment shall not become dormant: Provided, that when an entry is filed for record more than seven years from the date of the execution, the execution shall be re-recorded with all entries thereon, but if filed within seven years, the entry shall be recorded on the original record of the execution.
"It shall not be necessary in order to prevent dormancy that such execution be entered or such entry recorded on any other docket."
In the present case, the original record of the execution was made on September 29, 1924. Within seven years from this date, on July 28, 1930, an entry of nulla bona was made and properly entered on the original record of the execution on said date. The next entry of nulla bona, made on March 25, 1936, and recorded on April 16, 1936, was entered with a re-recording of the execution in another general execution docket book, but all of the entries on the execution were not shown by this re-recording or second recording, as required by the statute. See A. B. Farquhar Co. v. Myers, 194 Ga. 220 ( 21 S.E.2d 432). The entry of July 28, 1930, was omitted.
On April 2, 1943, another entry of nulla bona was made and recorded on that date, under the said second record of the execution entered in 1936, and again without the nulla bona entry of 1930 being recorded thereon. Irrespective of whether or not the reference made to the original record of the execution — "For original record of Fi. Fa. see General Execution Dkt. No. 2." — was a sufficient compliance with the requirement that all entries be set out where a nulla bona entry is filed for record more than seven years from the date of the execution, it does not appear that there was a compliance with the requirements of Code § 110-1001, supra, that the execution be "re-recorded" when the entry of nulla bona on April 2, 1943, was then filed for record, over eighteen years from the time when the execution was first recorded. The above-quoted proviso of the dormancy statute required that this entry of 1943 be recorded with a re-recording or another record of the execution, and this was not done.
The plaintiff in error cites and relies on the case of Pope v. United States F. G. Co., 198 Ga. 304 ( 31 S.E.2d 602), but that case differs in its facts from the present one. It was there held that, where an entry of nulla bona was filed for record within seven years from the original record of the execution, and the execution was re-recorded with all entries thereon and with a reference to such re-recording from the original record — it being physically impossible to record such entry on the original record as required — this was a substantial compliance with the statute sufficient to prevent the judgment from becoming dormant. Here the recording of the nulla bona entry of 1943, more than seven years after the original record of the execution, without re-recording the execution as above stated, was not sufficient to prevent the running of the dormancy statute, and the judgment became dormant more than three years before the filing of the present action in 1951.
2. The allegations of the petition do not show such a bona fide public effort to enforce the execution in the courts as would prevent the judgment from becoming dormant. The only allegations in this respect are that the sheriff had made diligent searches, but was unable to locate property on which to levy execution; that the sheriff had entered his entries on nulla bona on the execution which the plaintiff then presented to the clerk to be recorded; and that the plaintiff has paid the clerk's and sheriff's costs. "When reliance is put upon the equitable construction of the dormancy act, the kind of bona fide public effort to enforce the execution in the courts contemplated by the law is such as can and must be shown by an inspection of the public records thereof. . . The entry by the city marshal certainly can not be construed to mean a proceeding in the courts of the country." Lewis v. Moultrie Banking Co., 36 Ga. App. 347, 351 ( 136 S.E. 554). Nor can a nulla bona entry or entries made by a sheriff or other levying officer and entered on the general execution docket be construed to be a proceeding in the courts. "Under the ruling in Hollis v. Lamb, 114 Ga. 740 [40 S.E. 751], a judgment may be prevented from becoming dormant either by proper and timely entries on the execution, duly recorded on the execution docket of the court from which it issued, or by active and bona fide efforts on the part of the plaintiff to enforce his execution by appropriate legal proceedings, duly taken. In the opinion it was said that `the dormancy of a judgment is prevented either by proper entries every seven years, duly recorded on the execution docket, or by a bona fide public effort on the part of the plaintiff in fi. fa. to enforce his execution in the courts of the country at such times and periods that seven years will not elapse between such attempts or between such an attempt and a proper entry.' The mere record of an entry on the general execution docket is not an effort to enforce the execution. . . Such a record is not such an active and public effort as was contemplated by that decision, and can not be considered as sufficient to keep the judgment in life." Columbus Fertilizer Co. v. Hanks, 119 Ga. 950, 954 ( 47 S.E. 222). See also Craven v. Martin, 140 Ga. 651 ( 79 S.E. 568); Oliver v. James, 131 Ga. 182, 188 ( 62 S.E. 73).
3. The petition to revive the dormant judgment alleged neither the proper record of the execution and entries on the general execution docket, as required by Code § 110-1001, supra, nor a proper bona fide public effort to enforce the execution in the courts made within the time specified by statute; and the trial judge did not err in sustaining the general demurrer thereto and dismissing the action.
Judgment affirmed. Felton and Worrill, JJ., concur.