5 Ga. 527 | Ga. | 1848
By the Court.
delivering the opinion.
It appears, from the record in this case, that in the year 1S40, the plaintiff in error instituted an action of assumpsit, in the Superior Court of Clark county, against Francis C. McKinley, as the .surviving copartner of Seymour & McKinley, and obtained judgment against said McKinley, for the sum of five 'thousand seven hundred and twenty-one dollars and fifty cents. It also appears that at the time the said suit was instituted, in the county of Clark, McKinley' was a citizen of, and resided in the county of G-roene, in this State. When the suit was instituted in the county of Clark against McKinley, he acknowledged due and legal service of the declaration, waived a copy thereof, and process and service by the sheriff, and also waived all exceptions to the jurisdiction of the Court, and acknoiuledged the same. It also appears, from the record, that in March,-1848, the defendants in error obtained a judgment against said McKinley, for tlie sum ■of nine thousand seven hundred and fifty dollars and fifty-seven cents, which is unsatisfied, and that there is now in the' hands of the sheriff of Morgan county, the sum of seven thousand dollars, raised by the sale of McKinley’s propérty, out of which the plaintiff'in error claims to have his judgment satisfied, in
The prayer of the bill is, that the judgment obtained in the county of Clark against McKinley may be declared void, as against the defendants in error, who are subsequent judgment creditors of said McKinley, and be postponed and perpetually enjoined from enforcing the same against the rights of the defendants in error. The plaintiff in error demurred to the bill in the Court below, for want of equity, and that it should have been filed in the county of Clark; which demurrer was overruled; whereupon the plaintiff in error excepted, and now assigns the same for error here.
One of the defendants (McKinley) resides in the county of Greene, as is shown by the record, and who is the defendant in the judgmentsought to be set aside ; therefore, the bill was properly filed in the couuty of Greene, the residence of one of the defendants, who is interested in the decree which may be made in the cause. There was no error in the Court below, in overruling the demurrer on that ground.
Whatever may have been the intention of the framers of the Constitution, it is not for us to know, beyond what they have said in clear and explicit terms. If, however, we permit the Judiciary Act of 1799, to be explanatory of the intention .of the framers of the Constitution, it will be' apparent that something more was meant than a mere privilege to defendants. The 26th section of the Judiciary Act of 1799, declares, “ No confession of judgment shall hereafter be entered up, but in the county where 'the defendant or defendants may reside.” Prince, 427. If this clause-of the Constitution was intended for the benefit of defendants only, why not permit them to consent to be sued in any county in the State, and confess judgment in any county, and have,the same entered up in any county, other than the residence of such defendants 1 '
But we are of opinion, there is at least one good and substan tial reason, why all civil cases should be tried in the county wherein the defendant resides, and all judgments entered up there, without regard to the convenience of such defendant. By outlaw, judgments create a lien upon the property of the defendant from their date, and it is highly important, especially to the creditors of the judgment debtor, there should be a definite place or locality, where such liens can be ascertained and known to exist, by all persons interested. The Constitution has fixed the, county
Let the judgment of the Court below, be affirmed.