Except as otherwise provided by law, executions shall be issued by the clerk of the court in which judgment is obtained, shall bear teste in the name of the judge of such court, shall bear date from the time of their issuing, shall be directed "To all and singular the sheriffs of this state and their lawful deputies," and may be levied on all the estate of the defendant, both real and personal, which is subject to levy and sale.
(Laws 1799, Cobb's 1851 Digest, p. 510; Code 1863, § 3553; Code 1868, § 3576; Code 1873, § 3632; Code 1882, § 3632; Civil Code 1895, § 5413; Civil Code 1910, § 6018; Code 1933, § 39-101.)
Law reviews.- For note discussing the procedure for the issuance and amendment of a writ of execution, see 12 Ga. L. Rev. 814 (1978).
JUDICIAL DECISIONS
All executions must be signed by clerk or by the clerk's authority, and if not so signed, the executions are void. A deputy may be authorized to issue executions but the deputy should not sign with the name of the clerk as if the clerk personally had done it. The clerk cannot by oral authority confer general power upon another to sign the clerk's name to executions issued in the clerk's absence and not under the clerk's immediate authority. Battle v. Warren County Fertilizer Co., 155 Ga. 650, 118 S.E. 362 (1923).
Execution must be levied by one of the officers to whom directed. Peeples v. Garrison & Son, 141 Ga. 411, 81 S.E. 116 (1914).
What property of debtor is subject to levy and sale.
- There is no general statute prescribing definitely what property of debtor is subject to levy and sale; this section providing simply that executions may be levied on all the estate, real and personal, subject to levy and sale. Common-law executions in this state usually order the levying officer to seize enough of the goods and chattels, lands and tenements, of the debtor to make the sum due. Rusk v. Hill, 121 Ga. 379, 49 S.E. 261 (1904).
Life estate is subject to levy and sale. First Nat'l Bank v. Geiger, 61 Ga. App. 865, 7 S.E.2d 756 (1940).
Vested remainder interest in land may be levied upon under execution, although the life estate be not terminated; and since the greater includes the less, a levy upon a described tract or parcel of land is a levy upon the whole interest therein, including all vested remainder interests when such remainder interests exist. Cox v. Hargrove, 205 Ga. 12, 52 S.E.2d 312 (1949).
Tax executions are "directed to all and singular the sheriffs and constables of this state." The sheriff is the proper person to enforce such execution and, accordingly, to make a valid transfer thereof. Beavers v. Interstate Bond Co., 189 Ga. 201, 6 S.E.2d 283 (1939).
Cited in Tefft v. Sternberg, 40 F. 2 (S.D. Ga. 1887); Zugar v. Scarbrough, 186 Ga. 310, 197 S.E. 854 (1938); Shedden v. National Florence Crittenton Mission, 191 Ga. 428, 12 S.E.2d 618 (1940); Owen v. Cunningham, 111 Ga. App. 399, 141 S.E.2d 912 (1965); Riviera Equip., Inc. v. Omega Equip. Corp., 147 Ga. App. 412, 249 S.E.2d 133 (1978); Life Ins. Co. v. Dodgen, 148 Ga. App. 725, 252 S.E.2d 629 (1979); Bloom v. Camp, 336 Ga. App. 891, 785 S.E.2d 573 (2016).
OPINIONS OF THE ATTORNEY GENERALWrits of fieri facias issued by the magistrate court may be directed to the constables of that court and, in executing these writs, constables may conduct judicial sales of personal property. 1984 Op. Att'y Gen. No. U84-36.
Clerk's fees.
- Clerks of the superior courts are entitled by Ga. L. 1972, p. 664 (see now O.C.G.A. § 15-6-77) to charge a fee of 50 (now $1.00) for each fieri facias entered against each defendant on the general execution docket. 1976 Op. Att'y Gen. No. U76-51.
RESEARCH REFERENCES
Am. Jur. 2d.
- 30 Am. Jur. 2d, Executions and Enforcement of Judgments, §§ 47 et seq., 177 et seq.
C.J.S.- 33 C.J.S., Executions, § 27 et seq.