64 Ga. 769 | Ga. | 1880
The sheriff levied a fi. fa. in favor of the plaintiff in error against the Lowman Silver Mining Company, on a tract of land in Hall county as the property of defendant in fi.fa. The land was claimed by the Lowman Gold and Silver Mining Company, and when the issue was joined and the parties went to trial, the court dismissed the plaintiff’s levy, and that is the error complained of, made in the shape of a motion for a new trial.
Those grounds are, first, that the judgment is for eight dollars too much, more than declared 'for. Secondly, that it is a general judgment to which the party was not entitled, the judgment being based upon an attachment, and thirdly, because the affidavit in attachment is only for $192.50, the bond is double that sum, and in such cases at least the excess of the verdict and judgment over the sum attached for is fatal.
If the judgment be general, the excess is a mere irregularity. 8 Ga., 114; 14 Ib., 589 ; 33 Ib., 161; 33 Ib., 596; 46 Ib., 454.
The judgment therefore is general and was legally made so. If general, the claimant could not attack it collaterally for the irregularity of being eight dollars over the amount declared on. 20 Ga., 94 ; 47 Ib., 205 ; Tharp vs. Tumlin, Pollard vs. King, last term, not yet reported. So that it was wrong to dismiss the levy because the judgment was too large — where the court below put the ruling.
On the whole, it is clear that the judgment is not void, but valid, the fi.fa. followed it and should have carried the case to the jury for tidal on the facts. The judgment is reversed because the levy was dismissed.
Judgment reversed.