Groover, Stubbs & Co. v. Inman

60 Ga. 406 | Ga. | 1878

Warner, Chief Justice.

This case came before the court below upon the question as to whether Groover, Stubbs & Co., or whether the administrators of Jeremiah Inman, deceased, were entitled to the money arising from the sale of the property of Daniel I. Jones, deceased, (which had been sold by consent) on a bill filed to marshal the assets of Jones’ estate. The question was submitted to the court for decision, without the intervention of a jury. After hearing the evidence, the court decreed that the administrators of J. Inman had a valid judgment against Daniel I. Jones, deceased, and ordered the money to be paid to that judgment, to the exclusion of the claim of Groover, Stubbs & Co., to which decision and judgment Groover, Stubbs & Co. excepted. Groover, Stubbs & Co. claimed the money under an ^pq-uitable mortgage executed to them by Daniel I. Jones in his lifetime. The administrators of J. Inman claimed the money on a judgment obtained in Burke superior court against Daniel I. Jones, in November 1868, which was of older date than Groover, Stubbs & Co.’s mortgage. The administrators of Inman read in evidence an exemplification of the record of the suit, judgment, and execution, from Burke superior court over the objections of Groover, Stubbs & Co., from which it appears that suit was instituted in that county by Jeremiah Inman in his lifetime against Daniel I-Jones, of the county of Lowndes, and M. D. Jones of the said county of Burke, on a joint and several promissory note made by them for the sum of $4,145.00. There does not appear in the record to have been any issuable defense filed on oath to said suit. The presiding judge of the court awarded as follows: “ I award to the plaintiff the sum of forty-one hundred and forty-five dollars principal debt, and interest thereon from the fourth day of March, A. D. eighteen hundred and fifty-nine, and costs of suit.

(Signed) Wm. Gibson, Judge.”

Whereupon the plaintiff’s attorney entered up a judgment in favor of the plaintiff against the defendants for the sum awarded by the judge, in the same form and manner as was usual in entering up a judgment on the verdict of a jury, which judgment, was dated 19th of November, 1868.

1. 2. The objections to the decree insisted on here were, that no legal judgment had been rendered in Burke superior court against Daniel I. Jones which would entitle it to claim the money in dispute, and because it had not been recorded in the county of Lowndes as required by the act of 1874. The most that can be said against the judgment is that it was irregular in view of the 38th rule of the court, but not void. The judgment, however, was rendered prior to the adoption of the rule prescribing the form of a judgment to be rendered in cases where no issuable defense was filed on oath, as in obedience to the 'feonstitution of 1868. This form is merely directory, and it would not follow that because a judgment was awarded by the court in a different form, that it would be void. The superior court of Burke county was a court of general jurisdiction, and William Gibson was a judge thereof, of which fact the other courts in the state are bound to take judicial notice, and when the record shows that as such judge he awarded to the plaintiff the sum of money specified therein, (there being no issuable defense to the suit filed on oath), the legal effect of it was a judgment for that amount in favor of the plaintiff against the defendants in that suit, and because the plaintiff’s attorney entered up a judgment on the record upon that judgment of the court, as upon the verdict of a jury out of abundant caution, did not make the judgment any the worse on that account. The objection to the judgment is more a matter of form than of substance.

3. The judgment having been awarded by the court before the passage of the act of 1874, and Groover, Stubbs & Co.’s mortgage bearing date prior thei’eto, the rights of the parties were not affected by it.

4. Inasmuch as the judgment which ‘ created the lien on the fund was in evidence before the court, the alleged alteration of the name in the fi.fa., became immaterial.

5. The third exception to the decree is, that it is contrary to law and the evidence, but does not state wherein it is contrary to law or evidence. This is not a motion for a new trial on the ground that the decree is contrary to law and evidence, but the case is brought here on a bill of exceptions alone, and it was incumbent on the plaintiffs in error to have distinctly specified in their bill of exceptions the particular points of law which the decree violated, in order to obtain a reversal thereof in this court. See rule eighth of the supreme court.

Let the judgment of the court below be affirmed.