87 Ga. 205 | Ga. | 1891
The record in this case discloses that Moore obtained a judgment against Asa O’Barr and E. E. O’BaiT, in a justice’s court. Execution was issued thereon and levied on a certain tract of land. Asa O’Barr filed an affidavit of illegality to this execution, upon the ground that the land had be“en set apart to him as a homestead. The affidavit of illegality was returned to the superior court of the county, and on the trial thereof in that court, the jury returned a verdict in favor of the plaintiff' in fi. fa., and the judge entered a judgment ordering the ji fa. to proceed. The land was again advertised for sale, and Mrs. E. E. O’Barr, the wife of Asa O’Barr, filed her claim thereto, on the ground that it had been set apart as a homestead to her husband for the benefit of her and her minor children, and was therefore exempt from levy and sale. This claim was returned to the superior court of the county, aud the plaintiff va.fi. fa. tendered issue thereon, and insisted that “the issue raised by said claim was fully adjudicated and passed upon by a court of competent jurisdiction, to wit, the superior court of said county, at the September term, 1889, under an affidavit of illegality filed to the same levy by Asa O’Barr, one of the defendants, . . in which he alleged and undertook to prove that the land levied upon had, on the 16th of November, 1878, been set apart to himself and family as a homestead, and that under the issue made upon said affidavit of illegality, the same was fully investigated and decided adversely to said Asa O’Barr and his family, by a verdict of the jury, and upon said verdict a judgment was entered, which verdict and judgment have never be.en excepted to or set aside. . . Said adjudication is a complete bar to the present claim ; and of this he puts himself upon the country.”
In reply to this issue the claimant insisted that she’ was not bound by said former adjudication, for the rea
We think the court was right in refusing to grant a new trial on this ground. The code, §3666, requires that when an execution is levied and illegality filed thereto, the officer shall return the execution, affidavit and bond to “the next term of the court from which the execution issued,” and the issue raised by the illegality shall be tried in that court. This execution was issued from a justice’s court, and when the illegality was filed by Asa O’Barr, the officer levying the same should have returned it to the justice’s court, and it should have been tried in that court.
It was argued, however, that the illegality made an issue respecting the title to land, and that the superior court was the proper court to which it ought to have been returned, because that court had exclusive jurisdiction to try titles to land, and therefore the judgment was not a nullity, but was legal and binding upon the claimant. We do not think this was a suit or issue of which the superior court had exclusive jurisdiction. While the superior court has exclusive jurisdiction to try titles to land, that is, of all suits brought for the purpose of trying title, it does not have exclusive jurisdiction in suits where the title is only incidentally or
It was also insisted that while it might he true that the superior court did not have exclusive jurisdiction to try this case, ’and that the ease might have been returned to the justice’s court for trial, the defendants m ii. fa. waived the jurisdiction by appearing in the superior court and participating in the trial there of the illegality. Wo have shown that under the code the execution should have been returned to the justice’s court, that court alone having jurisdiction of the parties and subject-matter of the case. The superior court had no jurisdiction of the parties or subject-matter, because there was no law. authorizing an officer to return the case to that court. It had no more jurisdiction of this case than it would have had of the original case begun in the justice’s court by Moore against the defendants upon the contract, if the constable had returned the summons to the superior court when required by law to return it to the justice’s court. The superior court in the latter case would have had no jurisdiction of the parties or the subject-matter of the suit, and if it had rendered a judgment therein it would have been void. “Parties, by consent, express or implied, cannot give jurisdiction to the court as to the person or subject-matter of the suit. It may, however, be waived, so far
Judgment affirmed. .