(Laws 1808, Cobb's 1851 Digest, p. 509; Laws 1847, Cobb's 1851 Digest, p. 516; Code 1863, §§ 3572, 3573; Code 1868, §§ 3595, 3596; Code 1873, §§ 3643, 3644; Code 1882, §§ 3643, 3644; Civil Code 1895, §§ 5426, 5428; Civil Code 1910, §§ 6031, 6033; Code 1933, §§ 39-120, 39-122; Ga. L. 1990, p. 298, § 1; Ga. L. 2000, p. 1589, § 3.)
Editor's notes.- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.
Law reviews.- For note discussing procedures required to effect a levy of execution, see 12 Ga. L. Rev. 814 (1978).
JUDICIAL DECISIONS
Statute did not apply to judicial foreclosure in equity.
- In cases of levying on land, written notice of the levy must be given personally or delivered by certified mail or statutory overnight delivery to the tenant in possession and to the defendant if not in possession. O.C.G.A. § 9-13-13 does not apply to a judicial foreclosure in equity; however, due process requires that interested parties receive actual notice. Ga. Home Appraisers, Inc. v. Trintec Portfolio Servs., LLC, 349 Ga. App. 356, 825 S.E.2d 833 (2019).
Entry of levy need not specify that notice was given.
- Requirement of this section that notice of the levy shall be given to the tenant in possession within five days after the levy is made does not contemplate that the entry of levy must itself state that notice has been given in order to render the levy valid. Keaton v. Farkas, 136 Ga. 188, 70 S.E. 1110 (1911); Hopson v. Stuart Lumber Co., 22 Ga. App. 392, 95 S.E. 1015 (1918).
Failure to give notice required by this section does not render levy ipso facto void. Solomon v. Peters, 37 Ga. 251, 92 Am. Dec. 69 (1867); Cox v. Montford, 66 Ga. 62 (1880).
Failure to give notice does not invalidate sale or purchaser's title.
- This section requiring an officer to give the tenant in possession written notice of the levy is directory to the officer, and a failure to give such notice does not affect the title acquired by a bona fide purchaser of the property under such levy. If any injury is sustained by reason of such failure to give notice, it is a matter between the party injured and the officer making the levy and failing to give the notice. Solomon v. Peters, 37 Ga. 251, 92 Am. Dec. 69 (1867); Clark v. C.T.H. Corp., 181 Ga. 710, 184 S.E. 592 (1936); Haden v. Liberty Co., 183 Ga. 209, 188 S.E. 29 (1936); Chastain v. Alford, 193 Ga. 551, 19 S.E.2d 721, answer conformed to, 67 Ga. App. 316, 20 S.E.2d 150 (1942).
Provision of this section which requires that the defendant in execution or other person in possession of realty shall be given five days' notice of levy upon realty is merely directory, and not so essential as to avoid the levy, and affords no ground for avoiding a sale had pursuant thereto. Bibb County v. Elkan, 184 Ga. 520, 192 S.E. 7 (1937); Tanner v. Williamson, 199 Ga. 216, 33 S.E.2d 694 (1945); Edenfield v. State, 80 Ga. App. 716, 57 S.E.2d 288 (1950).
Particularly when no tenant in possession to receive notice.
- Requirements of this section are merely directory and failure to comply therewith will not void the levy, particularly if the petition discloses that there was no tenant in possession of the property, and that the plaintiff was not a resident of the county. Sellers v. Johnson, 207 Ga. 644, 63 S.E.2d 904 (1951).
Suit for damages for noncompliance.
- Failure of officer to comply with this section may subject the officer to a suit for damages. Payne v. Daniel, 194 Ga. 549, 22 S.E.2d 47 (1942).
Levy without notice insufficient to stop running of statute of limitations.
- When a levy upon real property has been made by simple entry upon the execution, and no notice of such levy has been given either to the defendant in fi. fa. or to the tenant in possession, as required by this section, such a levy would not be sufficient to stop the running of the statute in favor of the purchaser. William P. Anderson & Co. v. Chenney, 51 Ga. 372 (1874); Kendall v. Westbrook, 54 Ga. 587 (1875); Zimmer v. Dansby, 65 Ga. 89 (1880); Rosser v. Georgia Pac. Ry., 102 Ga. 164, 29 S.E. 171 (1897).
Tax commissioners immune to action for damages for failure to give notice.
- 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 Smith v. Brown, 96 Ga. 274, 23 S.E. 849 (1895); Banks v. Giles, 20 Ga. App. 97, 92 S.E. 651 (1917); Wiley v. Martin, 163 Ga. 381, 136 S.E. 151 (1926); Small Equip. Co. v. Walker, 129 Ga. App. 710, 200 S.E.2d 904 (1973).
RESEARCH REFERENCES
Am. Jur. 2d.
- 30 Am. Jur. 2d, Executions and Enforcement of Judgments, § 195 et sq.
9A Am. Jur. Pleading and Practice Forms, Executions, § 68.
C.J.S.- 33 C.J.S., Executions, §§ 78, 138 et seq., 164.