20 Ga. App. 334 | Ga. Ct. App. | 1917
This is a proceeding by the plaintiff as receiver, in which he claims a surplus fund in the hands of the sheriff, arising from the sale of certain real estate. In order to dispose fully of the issue made in the court below, it is only necessary for us to decide the one question as to whether or not a certain judgment of the superior court, rendered in favor of M. M. Hedges against S. A. Hunt Jr. and R. N. Dickerson, under which the property was sold, is void, in so far as by its terms it is a judgment against the former as principal and the latter as surety on the note which was the basis of the judgment- It appears that the note mentioned was signed by both Hunt and Dickerson, apparently as principals, and both of the makers executed a deed to the land as security for the debt. The petition in the suit on the note was against both Hunt and Dickerson without in any way indicating that Dickerson was surety. The following statement, however, is contained in the judgment rendered in the present proceeding: “It being made to appear before me that by consent of the plaintiff’s attorney in the case of M. M. Hedges v. S. A. Hunt Jr. and R. N. Dickerson, that R. N. Dickerson wás permitted to show that he was only security on the note of M. M. Hedges, the
It is insisted by the plaintiff that so far as the judgment is by its terms a judgment against Hunt as principal and Dickerson as surety, it is, under the pleadings in that case, absolutely void and subject to collateral attack in the present proceeding, under the provisions of the code, in which it is declared: “The judgment of a court having no jurisdiction of the person and subject-matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it.” Civil Code (1910), § 5964. “A judgment that is void may be attacked in any court, and by anybody. In all other eases judgments can not be impeached collaterally, but must be set aside by the court rendering them.” Id. § 5968. It is urged by the plaintiff that in order for that portion of the Hedges judgment which relates to the suretyship of Dickerson to be valid, the latter must have given the notice required by the Civil Code (1910), § 3556, and must have pleaded and proved his suretyship in that proceeding. In support of this contention the decision in the case of Carlton v. White, 99 Ga. 384, 387 (27 S. E. 704), is cited, in which the court said: “If one sued as a principal claim to be a surety only, and the fact of suretyship does not appear on the face of the contract, this fact may be proved by parol as against the real-principal, and the true status of the alleged suretyship defined in the judgment, provided, before judg
It is urged that since, in the suit on the note of Hunt and Dickerson the latter failed to give the statutory notice referred to, and failed to enter his plea of suretyship, the court in that case was without jurisdiction to adjudicate that Dickerson’s liability was that of a surety only, and that in so far as the judgment rendered therein is an adjudication to that effect, it is absolutely void. In support of this contention, counsel, in their able and learned brief, cite: Mundy v. Vail, 34 N J. 418; Johnson v. McKinnon, 54 Fla. 221 (45 So. 23, 13 L. R. A. (N. S.) 874, 127 Am. St. R. 135); 23 Cyc. 816, 818, 820; Reynolds v. Stockton, 140 U. S. 254 (11 Sup. Ct. 773, 35 L. ed. 464); Janney v. Spedden, 38 Mo. 395; Lincoln National Bank v. Virgin, 36 Neb. 735 (55 N. W. 218, 38 Am. St. R. 747); Clapp v. McCabe, 155 N. Y. 525 (50 N. E. 274); Straight v. Harris, 14 Wis. 509; Sache v. Wallace, 101 Minn. 169 (112 N. W. 386, 11 L. R. A. (N. S.) 803, 118-Am. St. R. 612, 11 Ann. Cas. 348); Milner v. Mutual
It is not contended that the court did not have jurisdiction, in the broad sense, of the parties and of the subject-matter of the litigation; the contention is only that it was without jurisdiction of that part of the matter embraced in its judgment as to which no pleadings were presented, and for that reason only. The waiver made by the plaintiff pertained to the matter of pleadings only, and to such matter only as the plaintiff himself might have set up by amendment. While parties can not 'by consent give jurisdiction to the court as to the subject-matter of the suit, when the court is wholly without jurisdiction (Civil Code (1910), § 5663; Dix v. Dix, 132 Ga. 630, 64 S. E. 790), still where the pleadings are such as authorize a legal judgment, the mere waiver by the plaintiff ’ of a particular pleading on the part of the defendant is not one involving the jurisdiction of the court, but relates rather to how the court should exercise the jurisdiction it undoubtedly has, both of the person and the subject-matter before it. Where a court of general jurisdiction renders'judgment in a proceeding within the sphere of its authority, every presumption in favor of its jurisdiction will be indulged, 'and it is not necessary that all facts essential thereto shall affirmatively appear. Dunagan v. Stadler, 101 Ga. 474, 479 (29 S. E. 440). See a collation of authorities upon this subject in 8 Enc. Dig. Ga. Rep.
It has been said that one of the tests to be applied in determining whether a judgment is void, and therefore a nullity, is whether, if the party attacking it had been a party thereto, a motion in arrest could have been sustained for defects appearing in the face of the pleádings, which could not have been aided by amendment or cured by verdict. Chapman v. Taliaferro, 1 Ga. App. 235, 238 (58 S. E. 128). When, by consent of the plaintiff, Dickerson “was permitted to show that he was only surety,” it was entirely within the rights of the plaintiff to amend his petition in order to make it conform to the true status of the facts in the case. It was held in the case of Stanford v. Bradford, 45 Ga. 97, that “In
Judgment affirmed.