Any sheriff shall be liable to an action for damages or an attachment for contempt of court, at the option of the party, whenever it appears that the sheriff has injured the party by:
(Laws 1799, Cobb's 1851 Digest, p. 576; Code 1863, § 3853; Code 1868, § 3873; Code 1873, § 3949; Code 1882, § 3949; Civil Code 1895, § 4770; Civil Code 1910, § 5342; Code 1933, § 24-202.)
Law reviews.- For annual survey of real property law, see 57 Mercer L. Rev. 331 (2005); 58 Mercer L. Rev. 367 (2006).
JUDICIAL DECISIONS
Sovereign immunity waived.
- Sheriff's claim that the trial court improperly awarded a corporation purchaser the excess funds obtained in a tax sale of real property because the sheriff was entitled to sovereign immunity was rejected as O.C.G.A. § 15-13-2(4) waived the sheriff's sovereign immunity to the claim. Barrett v. Marathon Inv. Corp., 268 Ga. App. 196, 601 S.E.2d 516 (2004).
Sheriff liable for neglect or violation of duty.
- Rule against sheriff is not limited to cases enumerated in the statutes; the sheriff is certainly liable for neglect or violation of duty. Crawford v. Williams, 76 Ga. 792 (1886).
Rule against sheriff cannot be brought in favor of a dead man. Lee v. Armstrong, 49 Ga. 609 (1873).
Fine paid under a void indictment cannot be recovered by a rule against the sheriff. McDonald v. Sowell, 129 Ga. 242, 58 S.E. 860, 12 Ann. Cas. 701 (1907).
Liability for contempt.
- Although sheriff may be liable in action for damages, the sheriff is not necessarily liable for contempt; this latter liability depends on the good faith of the sheriff's conduct. Heard v. Callaway, 51 Ga. 314 (1874); In re Smith, 205 Ga. App. 857, 424 S.E.2d 45, cert. denied, 205 Ga. App. 900, 424 S.E.2d 45 (1992).
Before failure to levy will come within the terms of this section, it must appear: (1) that the sheriff is in contempt of court; and (2) that the plaintiff was injured by the contempt. Hunter v. Phillips, 56 Ga. 634 (1876) (see now O.C.G.A. § 15-13-2).
Failure to sell after levy is as much a breach of official duty as neglecting to levy. Wilkins v. American Freehold Land Mtg. Co., 106 Ga. 182, 32 S.E. 135 (1898).
Sheriff liable to plaintiff if defendant released without bond.
- If the sheriff arrests the defendant and discharges the defendant without bond for the defendant's appearance, the fact that the sheriff takes an obligation from a friend of the defendant to save the sheriff harmless in the event of a recovery by the plaintiff will not keep the sheriff from being ruled for the money if the plaintiff obtains a judgment and a return of no property is made. DeLongchamp v. J.W. Hicks & Co., 25 Ga. 200 (1858).
Receipt of debtor's check in lieu of execution of process is no defense for sheriff, and sheriff is liable for any loss. Ketcham v. Hines, 29 Ga. App. 627, 116 S.E. 225 (1923).
Tax commissioner not ex-officio sheriff.
- Property owner's claim for damages based on a county tax commissioner's failure to properly send notices required by O.C.G.A. §§ 9-13-13,48-3-3,48-3-9(a), and48-4-1, was barred by sovereign immunity; O.C.G.A. §§ 15-13-2 and48-5-137 did not render the tax commissioner liable as an ex-officio sheriff because the notices did not constitute a "false return" or legal neglect to make a "proper return." Raw Properties, Inc. v. Lawson, 335 Ga. App. 802, 783 S.E.2d 161 (2016).
Cited in A.A. Parker Produce, Inc. v. Mercer, 221 Ga. 449, 145 S.E.2d 237 (1965).
RESEARCH REFERENCES
C.J.S.
- 21 C.J.S., Courts, §§ 23, 31 et seq.
ALR.
- Steps to be taken by officer before resale upon default of purchaser at judicial or execution sale, 24 A.L.R. 1330.
Personal liability of party who places execution or attachment in hands of official, for wrongful levy thereunder upon property of third person, 91 A.L.R. 922.
Liability of sheriff or other officer executing process of execution or attachment for failure to seize sufficient property, 93 A.L.R. 316.
Return of service of process in action in personam showing personal or constructive service in state as subject to attack by showing that defendant was a nonresident and was not served in state, 107 A.L.R. 1342.
Duty of sheriff or other officer as to care of property levied upon by him, 138 A.L.R. 710.
What amounts to false return of execution or attachment; justification of alleged false return, 157 A.L.R. 194.
Use of affidavits to establish contempt, 79 A.L.R.2d 657.