128 Ga. 7 | Ga. | 1907
(After stating the facts).
This court on several occasions has in effect declared that a claim case, though on the law side of the court, partakes of the nature of an equitable proceeding. Williams v. Martin, 7 Ga. 377; Kennedy v. Redwine, 59 Ga. 330; Ford v. Holloway, 112 Ga. 851. It has sometimes been said that the issue to be tried in a claim case is that of title. Pierce v. DeGraffenried, 43 Ga. 392; Moss v. Stokely, 107 Ga. 233. But this is too narrow a statement of the full'extent of the issue involved in the adjudication of a claim case. The object of a claim is not only to try the question as to whether the title is in the claimant or the defendant in execution, but also whether the property levied upon is subject to the execution as against the title which the claimant sets up. DeLoach v. Myrick, 6 Ga. 412; Black v. Lewis, 30 Ga. 961; Alston v. Wilson, 64 Ga. 482. As was remarked by Judge Nisbet in Colquitt v. Thomas, 8 Ga. 265, in arguing the scope of the issue, "Nothing is, in truth, put in issue by the record, in a claim case, hut the liability of the property to the plaintiff’s judgment. The title of the claimant is tried, but no issue is made on the record about that. It is a feigned issue — feigned albeit it involves title to lands. That the sole legal issue is the liability of the property to the judgment, is proven by the verdict.” A claimant may attack an execution for any reason which the defendant in .execution could urge against it at the time of the trial of the claim case. New England Mortgage Co. v. Watson, 99 Ga. 735; Robinson v. Schly, 6 Ga. 529; Bradford v. Water Lot Co., 58 Ga. 282. Since the defendant may attack a judgment void upon its face, the claimant may take advan
In Pollard v. King, 63 Ga. 225, it was held, that after the claimant and plaintiff in fi. fa. have litigated through a regular claim case, and the property has been found subject, a court of equity will not enjoin a sale under the levy because the plaintiff’s judgment against the defendant in fi. fa. was not signed by the plaintiff or his counsel. And in Henderson v. Hill, 64 Ga. 292, it was held that after the claimant has litigated through a claim case, and the property has been found subject, and a judgment of affirmance has been rendered by the Supreme Court, he will not be heard to question the validity and binding force of the original judgment between the creditor and the debtor on which the levy rested, by showing, that at the time of the levy the judgment was void for dormancy. Counsel for plaintiff in error requests a review of the two last cited eases, but upon a careful consideration of the principle upon which they rest, we are of the opinion that the cases are correctly decided. The ground of attack upon the judgment in both cases was that it was void upon its face, — an attack which could have been made by the defendant, and for that reason was available to the claimant in the trial of the claim case, and necessarily included within the scope of the judgment rendered in the claim case. Garlington v. Fletcher, 111 Ga. 861.
How stand the various matters now urged by the plaintiff in error as grounds to enjoin the enforcement of the levy after the adjudication that the property levied on is subject to the fi. fa. ? The first allegation for equitable interference relates to the amendment changing the judgment de bonis propriis against W. H. Harris, to a judgment de bonis testatoris. This amendment was made before the execution issued. It was apparent upon the face of the proceedings upon which the judgment was predicated, and therefore
The next attack upon the validity of the levy was because it was grossly excessive. If so, it was void. Brinson, v. Lassiter, 81 Co,. 40, and cases cited on page 42; Roser v. Georgia Loan Co., 118 Ga. 181, and eit. This was also involved in the issue which was tried in the claim1 case, and the plaintiff in error is concluded on this point by that judgment. Another contention why the levy should be enjoined is that the judgment and execution were satisfied, because the plaintiff in the judgment, before the levy, had sued out a process of garnishment against one Brown, and, with full knowledge that Brown was due the defendant in fi. fa. a sum largely in excess ■of the amount of his judgment, did, for a valuable consideration paid by the defendant in fi. fa., dismiss the garnishment and voluntarily release a'debt due by the garnishee to the defendant in fL fa. which was more than sufficient to satisfy the execution; and that subsequently' the garnishee paid the money to the defendant in fi. fa., who, with the consent of the plaintiff in fi. fa., applied it to the payment of other liens against the Harris estate, of inferior dignity. Even if it be conceded that these special facts would amount to an equitable extinguishment of the fi. fa. relatively to the plaintiff in error, he should have insisted on the same in the claim case. The issue there was whether the property levied upon was .subject to the fi. fa., and the claimant was bound to urge all of his objections which went to the total extinguishment of the fi. fa. A claimant will not be accorded the privilege of making a second attack, in a. subsequent proceeding, upon the validity of the plaintiffs process, because of his failure to set up any defensive equitable right by way of amendment to his claim. “Nothing is better set-
Judgment affirmed.