Graham v. Hall

68 Ga. 354 | Ga. | 1882

Speer, Justice.

Morris Hall filed his bill alleging that a certain tract of land therein described was his property, that the same was sold by the sheriff of Scriven county, at public sale, and purchased, by Graham, the plaintiff in error. Sale was made under a justice court fi. fa. in favor of respondent, Crumming, against complainant. That the court rendering the judgment had no jurisdiction, for that when the suit was brought and judgment rendered complainant was not a resident of the 457th district, in which said suit was brought, but was a resident of the 443d district. Complainant did not appear and plead, and in no manner waived the jurisdiction or consented thereto. He, therefore, prays cancellation of the deed executed by the sheriff to Graham. On the trial respondents moved to dismiss the bill for want of equity, which was overruled. Under the evidence and charge, a verdict was rendered for the complainant. Respondents made a motion for a new trial, which was refused, and respondents excepted.

1. The first ground of error was the refusal of the court to dismiss the bill on demurrer. The demurrer admits the allegations in the bill to be true, and this being so, the bill is not without equity. It is filed for the purpose of removing a cloud upon the title of complainant to the land in controversy. He alleges the judgment and ft. fa. thereon were rendered by a court that had no jurisdiction, and were, therefore, void. If so, the sale and purchase were void, and a court of equity will aid complainant in having the. sheriff’s title executed to Graham set aside and cancelled. Code, §3232. The judgment of a court having no jurisdiction is void and may be attacked in any court where it becomes material to the interest of the parties to consider it. Code, §3594; 34 Ga., 253, 178; 11 Ib., 453.

2. We do not think the refusal of the court to give in charge the whole written request contained in the second ground of the motion was error. Under the law, commissioners appointed by the ordinaries to lay out new militia districts, or change the lines of those existing, “ have authority to engage the services of a competent surveyor to assist them in their duties.” They are not limited to the county surveyor. Code, §485. Section .574, defining the duties of the county surveyor, makes it one of his duties “to survey county lines and district lines, or other surveys in which his county may be interested whenever required by the ordinary,” but this does not, in our opinion, repeal section 485, that expressly authorizes the commissioners “ to engage the services of a competent surveyor.”

While portions of this written request might have been proper, yet, as the whole request was sought to be given in charge, and the whole was not a legal charge, the refusal to give the whole written request was not error.

3. Neither was it error in the court to allow the witnesses, Branch and Mobley, to testify as to the change of the lines of the district, by which the residence of the complainant was changed from 457th district to the 443d district. The record in the court of ordinary could not have established the place where the complainant resided, or shown in which district he lived. While the lines of the district were a matter of record, yet the residence of the defendant was not, and we think it was competent to show by witnesses who knew, the original and changed lines, how the residence of the defendant was affected by the change thus made, and,, therefore, to show in what district the residence of complainant was left after the change was made. . .

4. The court did not err in instructing the jury, as complained of in the fifth ground, that if the evidence showed that the complainant did not reside in the district in which suit was brought, on which the fi. fa. issued and under which the land was sold, that the court had no jurisdiction, and the sale made under it was void, and respondent got no title ; and in order to avoid this and to show the court had no jurisdiction, it must appear that complainant had appeared and pleaded to said suit.

5. We find no error in the sixth and seventh grounds of the motion, as therein complained of. There was, in our opinion, sufficient evidence to sustain the verdict, and it being approved by the court below, we do not feel warranted in disturbing it.

Judgment affirmed.