Kingery v. Citizens Bank

Wade, J.

1. The evidence of the sheriff disclosed that the fund sought to be distributed by rule had never in fact been so distributed prior to the time he was served with notice of the claim of the plaintiff, accompanied by the liens upon which the notice was based, and no entry to that effect had ever been made upon the intervenor’s fi. fa. by the sheriff or by any one acting under his authority. The sheriff testified: “I have never authorized anybody to make an entry allowing $604.10 on the fl. fa. of L. H. Kingery [intervenor]. I have never authorized .anybody to make any writing showing that this money has been applied.” “I have not deposited the $604.10 yet” — the amount in dispute which the intervenor claimed had already been applied to his execution before the notice of the plaintiff, claiming the funds, with alias fi. fas. attached thereto, had been served upon the sheriff. The sheriff testified further: “This money has never been actually paid in and no distribution been actually made. In that sense I have never distributed the $604.10.”

2. No distribution having ever been finally made of the fund in hand before the sheriff was served with sufficient legal notice of the claim of the plaintiff against the fund, but it further appearing that the sheriff held an obligation from the intervenor, binding the intervenor *69 to “pay in the $604.10 if it was held by the court to be subject to these fi. fas. of the Citizens Bank of Pulaski,” it is clear no final and irrevocable application of the fund by the sheriff to the junior fi. fa. in favor of the intervenor was made before the service upon him of the notice in behalf of the plaintiff or complainant in the court below, accompanied by liens which were superior to the lien of the intervenor.

Decided September 10, 1915. Money-rule; from city court of Statesboro — Judge Strange. November 17, 1914. Brannen & Booth, Deal & Benfroe, for plaintiffs in error. Renter Proctor, F. B. Hunter, contra. • -

3. The court did not err, on the facts in evidence, in finding that the fi. fas. in favor of the Citizens Bank of Pulaski constituted a superior lien against the fund, and in thereafter overruling the motion for a new trial. Judgment affirmed.