
    C. S. DARLEY, plaintiff in error, v. GEORGE W. THOMAS, defendant in error.
    (Atlanta,
    January Term, 1871.)
    RULE NISI AGAINST SHERIFF—FAILURE TO ANSWER-CONTINUANCE—ABSENCE >OF COUNSEL—RULE ABSOLUTE.—Where a rule nisi was served at the April Tei-m, calling upon the sheriff to pay over money to plaintiff in fi. fa., and_ no answer was filed at that term; and at the October Term following, the sheriff agreed, in writing, upon the proceeding for attachment, if he did not pay that week, it should be had as prayed for, and the Court passed to the Adjourned Term, and the sheriff neither answered nor paid over the money, but moved a continuance on the ground of absent counsel, it appearing he had other counsel who had represented him in the proceeding, and the absent counsel never appeared or was known before in the case, and the Court overruled the motion and granted the rule absolute:
    
      Held, That the Judge was right.
    Rule against Sheriff. Contempt. Before Judge Clark. Sumter Superior Court. October Adjourned Term, 1870.
    *In April, 1870, a rule' nisi was granted against Darley, sheriff, requiring him to show cause why he should not pay over to plaintiff’s attorney the amount due on a judgment in favor of George W. Thomas, against S. S. Boone, principal, and W. A. Hawkins, endorser, which was for $1,500 00, besides ■ interest. He had collected $1,000 00 before April. 1870, and a written demand of it had been served on him. The sheriff filed no answer. At October Term he paid part of the money to plaintiff’s attorney, and gave his written consent that the rule should be made absolute if he did not pay before the Adjourned Term. At April and October Terms, and at the Adjourned Term, the sheriff was represented by Mr. Ansley, as his attorney. At this Adjourned Term, after trying to postpone the matter further, the sheriff moved to put it off a dav or two. because of the absence of his attorney. W. A. Hawkins. This was the first notice of Hawkins being his attorney. The Court refused to postpone the cause, ordered the sheriff to pay over the balance due on the fi. fa., plus twenty per cent. - on the unpaid part of what he had collected when said demand was made, and fined him $200 00 for contempt of Court.
    This refusal to postoone and the granting of said order, are assigned as error. (The facts aforesaid are taken from the recitals in the order and the Judge’s certificate).
    
      W. A. Hawkins, J. A. Ansley, by R. F. Lyon, for plaintiff in error.
    Hawkins & Guerry, Lanier & Anderson, for defendant, asked for damages for delay.
   LOCHRANE, C. J.

In this case it appears that -a rule nisi was served upon Darley, the Sheriff of Sumter county, calling upon him to> pay over money on a fi. fa. He acknowledged service of the rule, April 13th, 1870. In October, 1870, the Judge passed the usual order of attachments, granting five days to pay over the money, and in default he was to be imprisoned. Upon *this paper we find the written agreement of the sheriff to pay over the money during the week, and, upon failure, he consents that the Judge may hear and act upon the matter immediately thereafter, and render the judgment prayed for.

The bill of exceptions alleges that on the final hearing of the rule the sheriff moved for a continuance, upon the ground of the absence of W. A. Hawkins, his attorney, and who was also endorsee on the note collected. He places the ground of continuance upon the fact that Colonel Hawkins had leave of absence and would be back to-morrow or next day.

At this stage of the hearing it appeared that'the sheriff had not filed his answer, and the Judge held that he did not need counsel, as he had filed no" answer, and proceeded to make the rule absolute. This judgment of the Court is assigned as error. We do not see how the Judge could have acted differently. The facts of the case exhibited, upon the part of the sheriff, a total disregard of the order of the Court. The rule nisi was served at the April Term; he made no answer to the rule, but six months elapsed, and at the October Term he still stood without compliance. Even that term passed without any definite action, and at the Adjourned Term he moved to continue the hearing, without either answer or explanation, and with his written agreement in the premises.

The Judge’s certificate exhibits clearly that the motion to continue was a subterfuge. He had counsel—Mr. Ansley— who had represented him all the way through, and only in the last hour did he present the fact of Colonel Hawkins being of counsel.

We think the Court acted with great leniency in the matter, and that his judgment should be affirmed.  