Under the facts of this case the court erred in making absolute a rule against the sheriff for not making the money on an execution issued on the foreclosure of a retention-of-title contract because the execution under the law was returnable to the January, 1948, term of Emanuel Superior Court, and since the affidavit of illegality was dismissed on December 29, 1947, there was not time for the sheriff to make the sale and make his return to the January term, and since he had until the April term to make his return, the judgment of liability based on his failure to make his return to the January term was premature and erroneous.
DECIDED JULY 8, 1948. Consumers Financing Corporation instituted a contempt proceeding against P. L. Youmans, Sheriff of Emanuel County, Ga. The petitioner on November 21, 1947, foreclosed a conditional sales contract executed by Frank A. Gibson, alleging; that execution issued upon the foreclosure which was delivered to the sheriff; that on November 24, 1947, the sheriff levied on the automobile involved in the contract foreclosed; that a forthcoming bond was accepted by the sheriff on or about November 25, 1947; that the automobile was duly advertised for sale once a week for four weeks to be sold on the first Tuesday in February, 1948; that the automobile was not brought forth for sale and the sheriff failed to make the money on the execution. Nisi issued on the rule on February 23, 1948, and it was agreed that the court could pass on the facts without a jury. The sheriff denied the material allegations and alleged that there were *Page 374 amendments, a plea to the jurisdiction of the court and other pleadings which had not been passed on by the court, that the sale of the property had been temporarily restrained by the court. On the hearing of the rule it developed that the automobile was not produced at the sale and the sheriff did not make the money on the execution on February 3, 1948; that the temporary order restraining the sale of the automobile was conditioned upon the execution of an eventual condemnation money bond by the defendant in fi. fa., which was not given. An affidavit of illegality was filed to the levy and was dismissed for the defendant's failure to amend on December 29, 1947. The hearing on the rule was had on February 28, 1948, at which time the judge passed an order making the rule absolute and ordered the sheriff to pay to plaintiff $856.16 instanter or be attached for contempt. To this order the defendant excepted. Code, § 39-125 provides: "All executions, except as otherwise provided by this Code, shall be made returnable to the next term of the court from which they issued respectively." Code, § 67-701, relating to the foreclosure of chattel mortgages, and which also covers foreclosures of conditional contracts of sale, does not make provision for the execution to be returnable to any particular term of court, so Code § 39-125 would apply. Since the affidavit of illegality was dismissed on December 29, 1947, it was impossible for the sheriff to advertise the property, sell it, and make his return to the next term of the court which convened on the second Monday in January, 1948. In such a case the execution became returnable to the April term, 1948. The rule for contempt, then, was premature and the judgment on the rule was likewise premature and erroneous. It is recited in the bill of exceptions that the sheriff had possession of the automobile on the date the rule was heard and at the time of the certificate of the bill of exceptions. In view of these proceedings and this appeal, it would seem that the sheriff would have until the next term of the court to make his return, provided he has time in which to effect an advertisement and sale, and if he does not have time, then to the subsequent term. *Page 375
The court erred in making the rule absolute.
Judgment reversed. Sutton, P. J., concurs. Parker, J.,concurs in the judgment.