Sale of Perishable Property - Advertisement; Notice; Disposition of Proceeds

1. Law
2. Georgia Code
3. Civil Practice
4. Executions and Judicial Sales
5. Judicial Sales
6. Conduct and Effect
7. Sale of Perishable Property - Advertisement; Notice; Disposition of Proceeds

1. The time and place of holding a sale under Code Section 9-13-163 shall be advertised at the courthouse and at two other public places at least ten days before the day of sale.
2. The judge or judge of the probate court may order a sale of livestock, fruit, or other personal property in a perishable condition, after three days' notice.
3. No judicial officer shall grant any order for the sale of personal property where the defendant in execution or other process or his attorney has not had at least two days' notice of applicant's intention to apply for such order, which notice shall specify the time and place of hearing. In cases of attachment for purchase money falling within this Code section, like notice shall be furnished the plaintiff or his attorney. In no case shall the notice be dispensed with, except where it is made to appear that it is impracticable to have the notice perfected or where the case is an urgent one, in which latter event the court may, in the exercise of a sound discretion, grant the order without notice.
4. The money arising from the sale shall be held by the officer making the same, subject to the order of the court having jurisdiction of the same.

(Ga. L. 1873, p. 48, § 1; Code 1873, § 3648; Ga. L. 1880-81, p. 60, § 1; Code 1882, § 3648; Civil Code 1895, § 5464; Civil Code 1910, § 6069; Code 1933, § 39-1204; Ga. L. 1983, p. 884, § 3-7.)

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

Livestock includes mule and may be properly classed as property that is expensive to keep, or "livestock, fruit or other personal property in a perishable condition." Jackson v. Parks, 49 Ga. App. 29, 174 S.E. 203 (1934).

Two days' notice of intention to apply for sale order.

- It must affirmatively appear that two days' notice of intention to apply for sale order was duly given, unless the case falls within one of the exceptions specified in this section. Jackson v. Parks, 49 Ga. App. 29, 174 S.E. 203 (1934).

Sale of property under provisions of this section would be void if judgment ordering 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).

Mere failure of sheriff to advertise sale for requisite full ten days.

- Provisions of law governing the advertisement of the property for a particular time or in a particular way are merely directory to the sheriff, and any such neglect on the sheriff's part may subject the sheriff to a suit for damages at the instance of the party injured, but does not affect the title of the purchaser unless there was actual fault on the purchaser's part, such as collusion between the purchaser and the sheriff. Hodges v. Cousins, 88 Ga. App. 645, 77 S.E.2d 83 (1953).

Cited in Parker & Dunn v. State, 166 Ga. 256, 142 S.E. 879 (1928); Spires v. Beane, 46 Ga. App. 843, 169 S.E. 386 (1933); State Revenue Comm'n v. Rich, 49 Ga. App. 271, 175 S.E. 394 (1934); 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).

RESEARCH REFERENCES

Am. Jur. 2d.

- 47 Am. Jur. 2d, Judicial Sales, § 56 et seq.

C.J.S.

- 50A C.J.S., Judicial Sales, § 14 et seq., 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.

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