41 Ga. 95 | Ga. | 1870
By the Court—
delivering the opinion.
This proceeding affords an illustration of the bad effect of a relaxation of the rules of law and practice which govern in this Court. The records in these two cases, heard together, are so defective, and so much confused, that it is impossible to determine from an' examination of them, what was the precise state of the cases before his Honor, Judge Johnson, when he made the decision. But as no motion was made to
As we gather the cases from the records, and the statement of counsel in the argument, the plaintiffs in error were tenants of the estate of J. W. Rowland, and had not paid the rent due for the land, on which the cotton, from the sale of which the money in question was realized, was made by *them. Distress-warrants, were sued 'out by W. G. Wamack, agent of the executor, and levied upon the cotton, pending an application by the tenants to have it set apart to them, under the Homestead and Exemption Act. On the hearing in the Court of Ordinary, the plaintiff, by his agent, appeared and controverted the right of the applicants to the exemption. The cases were carried, by appeal, from the Court of Ordinary to the Superior Court, and there tried, and verdict was rendered in favor of the applicants for exemption, subject to the right of the objector, to object to the constitutionality of the Homestead law, on a motion to distribute the money. This was a finding against the objector, so far as the question of the landlord’s right was concerned. It reserved only the question of the constitutionality of the Homestead law. It may be difficult for the objector to show, that the jury had any right to make such a reservation in his favor by their verdict, and that it was not in legal effect a general verdict against him. But if we give it full effect, as the jury intended ;.it, the only right reserved, was, to claim the money on distribution, if the Homestead law should be declared unconstitutional.
As the Act was not so declared, the finding became absolute against the objector. No steps were taken to set aside this verdict or the judgment of the Court in favor of the applicants for exemption. The cotton was sold and the money held up by the sheriff, by consent and under the order of the Court, till a’final disposition of the cases. A rule was afterwards taken against the sheriff for the money.
The sheriff answered the rule setting forth the above facts, rather indistinctly. From his. answer, it is not very clear that the cotton was made by the applicants as tenants of the estate. Nor is it very clearly stated, that the estate by its agent appeared and was a party to the proceeding in the Court of Ordinary and the Superior Court. It seems to be admitted in the argument, however, that both facts existed.
The Court ordered the fund paid to the plaintiff in the Distress-warfants. , Whether he made the ruling on the answer of the sheriff alone, or with the whole record before him, does not ^appear. Taking it for granted, however, that we have stated the facts of the case and the finding of the jury correctly, and we think we have, it is our opinion that the Court erred in the judgment rendered.
But for the judgment in these cases, in' favor of the applicants for the Exemption, we should have no difficulty in affirming the judgment of the Court, directing that this money be paid to the plaintiff in the Distress-warrants. But we think the judgment bound the landlord. He appeared by his agent in the Court of Ordinary, and objected to the Homestead or Exemption. The cases were carried to the Superior Court by appeal, and there decided against his right as landlord. He acquiesced in that judgment and took no. steps to set it aside, and we hold that he is bound by it.
Judgment reversed.
