The motion for rehearing complains that the statement of facts shows only that the motion for continuance was made on the ground that Pope was sick and unable to attend court, whereas it was also made on the ground that he was serving in the army of the United States and was entitled to a suspension or postponement of his case while on duty with the army and in particular at that time. The statement of facts inadvertently omitted the reference to Pope being in the army, though showing that he was "on duty," and to further explain that expression the omission complained of has been supplied. However, the opinion clearly shows that the fact of his being in the army was taken into account in considering the merits of the motion for continuance, it being stated that, "The motion for continuance, though stating as one of the grounds that the defendant Pope, without whom counsel asserted that he could not safely go to trial, was in the army of the United States was, properly construed, not a motion to stay the proceedings under the Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C.A., § 521) for the period of his service and sixty days thereafter, but was an ordinary motion to continue the case to another term. Counsel for the defendants so treat it." We have added after the words, "in the army of the United States," the words, "and entitled to a suspension of the case."
The motion for rehearing further insists that this court ignored the pleadings in ruling that no direct attack was made upon the official records in the clerk's office, showing entries respecting the *Page 78 sheriff's levy here involved; and, while admitting in the motion that no pleadings in the record here constituted such an attack, it was nevertheless contended that the clerk had failed to certify and send up the portion of the pleadings which would show such an attack. The movants nowhere suggested a diminution of the record, as was their privilege and duty to do under the Code, § 6-812; yet, if by their argument it is made to appear that portions of the record not sent up are material to enable this court to do complete justice, we would, under the Code, § 6-1403, on our own motion order the clerk to certify and send up such record. We have not done this for the reason that, if such pleadings are on file in the trial court, they of necessity as a matter of law must show that the clerk who made the records sought to be challenged is a party to this case, and if such records were to be certified and sent up under the order of this court and they revealed that the clerk was a party, then we would have no choice but to dismiss the writ of error because the bill of exceptions fails to make the clerk a party defendant therein, he being an essential party. Swift v. Swift, 191 Ga. 129.
The motion further contends that the portion of the record involved appearing on the original execution docket No. 19, and being a mere reference to the sheriff's levy as shown on the execution docket No. 22, is undated, and therefore the movants' evidence to show that such entry was not made in time to prevent dormancy does not contradict the record. Sufficient and conclusive answer to this contention is found in the fact that this identical record, together with that appearing on the docket No. 22, each of which refers to the other, was before this court on the last appearance of the case in Pope v. United StatesFidelity Guaranty Co., 198 Ga. 304; and, after specifically discussing the significance of the two entries, this court concluded with the statement that, "We hold that what was done by the clerk in the instant case was a substantial compliance with the provisions of the Code, § 110-1101, and was sufficient toprevent the executions in question from becoming dormant." (Italics ours.) That ruling became the law of the case thereafter. It means now that the two entries under attack were as a matter of law made at a time less than seven years from the record of the execution, and would prevent dormancy. The further substantial and controlling reason *Page 79 why this contention of the movants can not be sustained is, that the law places around the official acts of the clerk the legal presumption that he performed his duty under the law; that hence, if the law required an entry on the docket No. 19 to be made within the seven years, it was so made; and that, in order to rebut this presumption and attack the record, it is necessary to traverse the same in a direct attack, making the clerk a party.
Sprinz v. Frank, 81 Ga. 162 (2) (7 S.E. 177), cited for the first time in the brief of counsel for the movants, is distinguishable on its facts, and is not authority for the contention that the parol testimony should have been treated as making an issue for the jury.