111 Ga. 749 | Ga. | 1900
This was an action by J. J. Jolley and T. J. Jolley against James W. Hardeman and C. N. Barrett. The material portions of the plaintiffs’ petition were as follows: They were and had for many years been partners, and, as such, were the owners of a described cotton-press. Hardeman, the plaintiff in an execution which had been issued upon a judgment in his favor against J. J. Jolley, caused the same to be levied upon this cotton-press by Barrett, a constable of the 898th district, G. M., of Cobb county. After so doing, Hardeman presented to the justice of the peace of that district a petition stating that such levy had been made; that the property was likely to deteriorate in value; and that the defendant in execution, being beyond the limits of this State, could not be served with notice of said petition. This petition concluded with a prayer for an order directing the property to be sold before the court-house door of said district after the same had been advertised for ten days. Thereupon the magistrate granted an order of sale as prayed for, it being in the order recited that the defendant in execution could not be served with notice. Subsequently the constable did sell the cotton-press, and Hardeman became the purchaser at the price of $5, although the real value of the property was $150. The latter then took possession of the cotton-press and refused to deliver it to petitioners upon their making a demand for the same. Before the sale
It was insisted on the argument here that the sale under the order of the magistrate should be treated as binding upon the plaintiffs, because, as owners of the property, they were concluded by the judgment ordering the sale. This position is not maintainable. While an order of sale may be granted ex parte, it is nevertheless open to collateral attack when it is void upon its face. If the owner of property ordered to be sold is served and accorded a hearing, doubtless he can not go behind a judgment whereby it is adjudicated that such property is liable to deteriorate from keeping; but this certainly can not be so as to one who has not had his day in court.