40 Ga. App. 625 | Ga. Ct. App. | 1929
On July 16, 1927, C. H. Holmes sued out an attachment against Jill Brothers Inc., before a justice of the peace in Peach county, Ga., alleging that the defendant was indebted to him in the sum of $1239.18, and was a nonresident corporation. The attachment was returnable to the September term, 1927, of the superior court of Peach county, and was levied by seizing certain personal property alleged to be the property of the defendant. Divers summons of garnishment were also served, and one of the garnishees answered “indebted” in the sum of $225. A declaration in attachment was duly filed, returnable to the said September term wherein “plaintiff in attachment” alleged that defendant was indebted to him in the sum of $1239.38; that plaintiff had sworn out said attachment to enforce the collection of said sum, and that the same was levied by a constable of the 588th district of Hpson county on certain personal property; and that said attachment was levied by the deputy sheriff of Peach county by serving summons of garnishment on five different garnishees. The prayer of the declaration is in this language: “Wherefore your petitioner prays judgment for his said debt, and for the sale of the property, as aforesaid, and judgment against the garnishees aforesaid, and that the proceeds arising from the sale of the property and from the judgments against the garnishees shall be applied to the payment and satisfaction of said debt.”
At the said term of the said court the defendant, by counsel, “entered its special appearance to deny the jurisdiction of the court,” alleging: “1. That defendant has not been served with any process and did not acknowledge or waive same, and this court has not acquired jurisdiction of defendant’s person. 2. That this
The case was finally set for trial on March 7, 1939. On March 5, 1939, the defendant’s counsel instructed the clerk of court to dismiss all of its pleadings and mark the case dismissed on the docket, and notified the presiding judge and opposing counsel of this fact. On the day the case was set for trial counsel for the plaintiff in attachment objected to the defendant’s dismissing its pleadings, and insisted that he was entitled to a judgment in personam against the defendant. On March 7, 1939, the presiding judge passed the following order: “The above-stated case having been regularly assigned for trial at the regular March term, 1939, of Peach superior court, and the defendant therein, Jill Brothers Inc., having before said case was called for trial, by its counsel of record, John J. McCreary, dismissed its pleadings heretofore filed in said case, to wit, answer, demurrer, and plea to the jurisdiction; and the plaintiff having objected to the action of the defendant in voluntarily dismissing its pleadings as aforesaid, and the issue raised by this objection having been argued on the 7th day of March, 1939, at said regular term before me, it is considered, ordered, and adjudged that the defendant has the right to withdraw its pleadings, with the right on the part of the plaintiff to subject to its attachment such property as may be lawfully seized or brought into court by the proper process of this court.” The granting of the foregoing order was not excepted to in any way.
Previous to the September, 1939, term of court, the judge notified
Whatever the effect of the pleadings filed by the defendant might have been, the court, whether rightly or wrongly, entered a solemn judgment on March 7, 1929, giving the defendant the right to withdraw those pleadings. This judgment, not being excepted to, is the law of the case,, and it was beyond the power of the court to revoke, change, or modify it materially at a subsequent term of court. See Read Phosphate Co. v. Wells, 18 Ca. App. 656 (90 S. E. 358). Therefore the court’s ruling of September 5, 1929, was illegal and subject to the exception filed thereto, and the subsequent proceedings in the case were nugatory. As to the right of the defendant to withdraw its pleadings, and as to the effect of filing them subject to the plea to the jurisdiction, see Associated Press v. United Press, 104 Ga. 51 (29 S. E. 869).
Judgment reversed.