68 Ga. 518 | Ga. | 1882
The only question made by this record is, can the superior court render a judgment at the first term, so as to bind third persons, except in cases expressly provided by law ?
The case at bar is between the .state as plaintiff in execution and other parties who claim adversely to the defendant in execution; and these claimants attack the state’s judgment as a nullity against them because it was rendered at the first term of the court, they not being parties to the judgment or assenting thereto. As the judgment was by consent, the defendant would be estopped from attacking its validity. It isa compromise judgment, and a valuable consideration passed from the state to obtain it, less than her claim having been taken in the judgment, and part thereof having been relinquished in consideration that the defendant would then give her judgment for what appears now on the face of it. So that it is good as to the defendant. But does it bind from its date the property of others ? Is it good against them ?
The general law is that judgment may go by default at the first term where there is no answer by defendant, but the trial of the case must be at the second term, and the penalty of default is only the payment of costs. The language of the law even in cases by default is that “ no such trial shall in any case be had at the first term, except specially provided for by law.” Code, §3457. In matters of rent it is provided that trial be had at the first term; but in cases like this, we know of no law which authorizes the court to enter a judgment so as to bind third persons. Therefore this judgment at the time it was rendered under the law was coram non judice so far as others than parties thereto are concerned.
And the judgment of the court below so holding it must be affirmed.
Judgment affirmed.
