Palmer v. Inman

126 Ga. 519 | Ga. | 1906

Lumpkin, J.

(After stating the facts.)

1. The judgment to which it was sought to subject certain property by means of an equitable petition was dormant. Under the decisions in Nowell v. Haire, 116 Ga. 386, and Smith v. Bearden, 117 Ga. 822, an entry made 'by a proper officer upon an execution from a judgment rendered, unless recorded on the proper execution docket, will not, even as between the parties to the judgment, arrest the running of the dormanejr statute. Personally the writer inclines to the equitable construction placed upon the act, touching the dormancy of judgments, stated by Turner, J., in his dissenting opinion in Columbus Fertilizer Co. v. Hanks, 119 Ga. 955, as will be seen from the dissenting opinion in Rountree v. Jones, 124 Ga. 398. But the two decisions cited above are directly in point on the subject now before us, and one of them, having been concurred in by the entire bench of six Justices, is binding unless reviewed and modified or overruled by the entire bench of six Justices. If the entry of levy in February, 1894, was not sufficient to prevent the judgment from becoming dormant, certainly a mere memorandum unsigned and unrecorded, to the effect that a sale was suspended until further notice, and the statement “Credit this fi. fa. with fifty dollars, paid by J. B. Slaton,” also unsigned and unrecorded, would not have that effect. No entry at all appears to have ever been made on the ■docket until January 23, 1901, and the judgment was dormant when the entry of nulla bona of that date was made. There was neither proper prayer nor were there proper parties for the purpose of reviving this dormant judgment or obtaining judgment-on it by suit, .and the petition can not be considered as one having that object in view. Its sole purpose was by equitable proceedings to subject property to this execution. The judgment, in order to subject property either at law or in equity, must be awake. As long as it is dormant it is both legally and equitably asleep. It may be •aroused into activity by scire facias, or suit may be brought upon it.

2. It is true that under our practice, where legal and equitable remedies may be had in the same action, a suit on a dormant judgment and an equitable proceeding to subject property to it may be united. Kruger v. Walker, 111 Ga. 383. But here the judgment is left to slumber while equity labors- to subject property to it. If the maxim, vigilantibus non dormientibus leges subveniunt, applies to litigants who sleep over their rights, it would seem to apply in principle with even greater force to dormant judgments to .which it is sought, by equitable proceedings, to subject property without ■even awakening them from their lethargy.

Judgment affirmed.

All the Justices concur, except Fish, G. J., absent.