Whenever any personal property which is of a perishable nature or liable to deteriorate from keeping or the keeping of which is attended by expense is levied on by virtue of any fi. fa., attachment, or other process, and the defendant fails to recover possession of the same and it remains in the hands of the levying officer, upon the facts being made plainly to appear to the judge of the court from which the process has issued or to the judge of the superior court of the county or to the judge of the probate court of the county in which the levy has been made during the absence of the judge of the superior court, it shall be the duty of the judge to order a sale of the property. The sale shall be at the usual place of holding sheriff 's sales for the county where the property is located.
(Ga. L. 1873, p. 48, § 1; Code 1873, § 3648; Ga. L. 1880-81, p. 60, § 1; Code 1882, § 3648; Civil Code 1895, § 5463; Civil Code 1910, § 6068; Code 1933, § 39-1203; Ga. L. 1983, p. 884, § 3-6.)
Law reviews.- For note discussing procedures governing execution sales and the application of the proceeds of the sales, see 12 Ga. L. Rev. 814 (1978).
JUDICIAL DECISIONS
Short-order sale is not sale under final judgment. Bradley v. GMAC, 51 Ga. App. 609, 181 S.E. 188 (1935).
Short-order sale is equitable remedy provided for the convenience of the parties and preservation of the property. Bradley v. GMAC, 51 Ga. App. 609, 181 S.E. 188 (1935).
Whenever speedy sale was made under former Code 1933, § 39-1203 (see now O.C.G.A. § 9-13-163) it must affirmatively appear that two days' notice was duly given as to the applicant's intention to apply for an order of sale, unless the case fell within one of the exceptions specified in former Code 1933, § 39-1204 (see now O.C.G.A. § 9-13-164). Jackson v. Parks, 49 Ga. App. 29, 174 S.E. 203 (1934).
Sale of property under this section would be void if judgment ordering the sale were void, and such a judgment is void when it is not affirmatively made to appear that the requisite two-day notice had been given, or legally waived. Hodges v. Cousins, 88 Ga. App. 645, 77 S.E.2d 83 (1953).
When perishable property is sold in accordance with this section, sale divests all liens on the property sold and the liens so divested attach to the money raised by the sale. Welsh v. Lewis & Son, 71 Ga. 387 (1883); Cincinnati Cordage & Paper Co. v. Dodson Printers Supply Co., 131 Ga. 516, 62 S.E. 810 (1908); Davis v. Peagler, 21 Ga. App. 778, 95 S.E. 268 (1918).
Property which is of a perishable nature may, under proper order, be sold and the liens divested and made to attach to the funds. Bradley v. GMAC, 51 Ga. App. 609, 181 S.E. 188 (1935).
Tax liens not divested.
- When property is sold pursuant to this section, the short-order sale divests liens on the property, and the liens attach to the proceeds of such sale, but this rule will not affect property covered by a tax lien of the state. State Revenue Comm'n v. Rich, 49 Ga. App. 271, 175 S.E. 394 (1934).
Proceeds of sale credited upon indebtedness.
- When personal property levied upon is afterwards regularly sold by virtue of a so-called short-order sale, the proceeds of the sale, less the costs, should be credited upon the indebtedness due by the defendant in execution. Jones Motor Co. v. Macon Sav. Bank, 37 Ga. App. 767, 142 S.E. 199 (1928), aff'd, 168 Ga. 805, 149 S.E. 217 (1929).
Under this section, probate judge is authorized to issue order in absence of judge of superior court. Simmons v. Cooledge, 95 Ga. 50, 21 S.E. 1001 (1894).
Mortgage foreclosure proceeding that is void ab initio cannot be revived by a "short-order" proceeding for a sale of the property. Bacon v. Hansley, 22 Ga. App. 704, 97 S.E. 101, cert. denied, 22 Ga. App. 803 (1918).
Cited in Epstin v. Levenson & Co., 79 Ga. 718, 4 S.E. 328 (1887); Luke v. Gilley, 18 Ga. App. 327, 89 S.E. 343 (1916); Chambers v. Planters' Bank, 161 Ga. 535, 131 S.E. 280 (1926); Parker & Dunn v. State, 36 Ga. App. 370, 136 S.E. 800 (1927); Spires v. Beane, 46 Ga. App. 843, 169 S.E. 386 (1933); C.I.T. Corp. v. Carter, 61 Ga. App. 479, 6 S.E.2d 409 (1939); Smith v. Beavers, 62 Ga. App. 535, 8 S.E.2d 719 (1940); Hodges v. Cousins, 88 Ga. App. 645, 77 S.E.2d 83 (1953); James Talcott, Inc. v. De Witt, 216 Ga. 366, 116 S.E.2d 563 (1960); Johnson v. American Credit Co., 581 F.2d 526 (5th Cir. 1978).
RESEARCH REFERENCES15A Am. Jur. Pleading and Practice Forms, Judicial Sales, § 1.
C.J.S.- 50A C.J.S., Judicial Sales, § 30 et seq.
ALR.- Construction and effect of provision for execution sale on short notice, or sale in advance of judgment under writ of attachment, where property involved is subject to decay or depreciation, 3 A.L.R.3d 593.