Davis v. Dunn

74 Ga. 36 | Ga. | 1884

Jackson, Chief Justice.

1. The bill of exceptions refers to a motion for a new trial and grounds thereof in the transcript of the record. No such motion appears there; for want of it the case cannot be intelligently ruled; and as no suggestion of a diminution of the record was made, or time asked within which to perfect it, we see no proper action, in view of the rights of all parties and counsel, but to dismiss the writ of error.

2. The debt was created prior to the constitution of 1868, and the homestead under that constitution could not affect it. 53 Ga., 485. The transaction was not a novation, but a mere renewal of the old note. See same case.

3. Section 2028 of the Code has no application to this case, because this homestead was always subject to this debt, being a debt made before the constitution of 1868, and was liable to be levied on, without regard to those “ classes for which the homestead is bound under the constitution,” such as purchase money, removal of encumbrances, etc. So that the very words of section 2028 leave out this debt as one requiring an affidavit before levy.

Therefore, whether the case be heard or not, the j udgment would be an affirmance. But as there is no motion for a new trial in the record, and no evidence in the bill of exceptions, the better disposition of the case is to dismiss it, and thereby affirm the judgment.

Writ of error dismissed.