concurring specially.
I cannot fully join Division 1 of the majority opinion, because I believe that the appeal should be resolved under the plain language of OCGA § 15-13-3. I concur in Division 2 and in the judgment.
Brina Bay brought its money rule action against Echols pursuant to OCGA § 15-13-3. Pertinent to this appeal, that Code section applies when a sheriff “fails, upon application, to pay to the proper person or his attorney any money he may have in his hands which he may have collected by virtue of his office.” (Emphasis supplied.) OCGA § 15-13-3 (a). It is undisputed that Echols, as ex-officio sheriff, had no money in his hands collected by virtue of his office in connection with the tax sale either when Brina Bay applied for the excess tax sale funds or when Brina Bay obtained its interest in the property.
Accordingly, Brina Bay has no claim pursuant to OCGA § 15-13-3 under the plain language of that Code section. Because Brina Bay articulates no other basis for its claim, I believe that this is dispositive of the appeal. I therefore see no need to address, in this case, the propriety of Echols’s earlier decision to distribute the excess tax sale funds or the merits of Brina Bay’s assertion that Echols’s actions amounted to improperly paying a claimant who was first in time rather than first in priority