70 Ga. 541 | Ga. | 1883
The fi. fa. in question was issued by the judge of the county court of Clinch county, and bore date the 25th of July, 1868. Upon its face it purported to issue upon a judgment of the county court rendered on the day it bears date. Some time afterward, this judgment was set aside by a judgment of the superior court of Clinch county, upon a motion regularly served, on the ground that it was rendered by a court which had ceased to exist, under the constitution of 1868. At the time this judgment of the superior court was rendered, access could not be had to the records and proceedings of the county court, as they had been lost or mislaid; subsequently these records were found, and it appearing from them that the judgment was rendered in the county court on the 21st, instead of 25th, of July, the order of the superior court setting it aside
This bill, which is 'brought by a person who was no party to these proceedings or to the original judgment, makes the point distinctly, that the judgment and fi. fa. were both void, because the judgment was rendered by a court that had ceased to exist, and the fi.fa. was issued by one purporting to be an officer of this defunct tribunal.
But was the issuing of this fi.fa. (admitting that it was done on the 25th day of July,) anything more than a ministerial act? In Colquitt & Baggs vs. Oliver, 49 Ga., 284, this court decided that, where a verdict was rendered in the county court prior to its abolishment, and an appeal was entered afterwards, but within the four days allowed by law, the judgment rendered against the security on the appeal on the second trial was valid; that the acceptance of the appeal bond by the county judge was a ministerial and not a judicial act, and was nothing more than the transmission of the unfinished business of the county court to the superior court. The analogy between this case and the one under consideration is not close or complete. In that case the judge was engaged in the duty imposed by the constitution, which abolished his office, of transmitting the unfinished business of his court to the superior court; the act was essential to the performance of the duty enjoined upon him by the constitution, and was in furtherance of its objects. But the retention of such authority could not be implied to enable him to issue the execution. This could and should have been done by the superior court, after the case was transmitted. The objection is not thfit the judge of the county court was a defacto officer, and as such could perform a ministerial act; it was that he was no officer at all, either defacto or de jure, for the purpose in question; that no such office as that in which
And this, we think, is the distinction clearly deducible from the authorities. The cases cited by counsel for the plaintiff in error certainly recognize it. Hinton vs. Lindsay, 20 Ga., 746; Blount vs. Wells, 55 Ib., 282; Walden vs. County of Lee, 60 Ib., 298. So that we conclude from what appears in the proceedings that the judgment of the county court, which was rendered on the 2'lst day of July, 1868, was rendered while that court was in existence and was valid; but that the execution, issued four days thereafter by the judge of the county court, was issued after the court was abolished, by one who had no power to perform such an act, and is void, unless something other than this can be shown to take it out of the rule. If this had been an original question, not fully covered by former decisions of the court, then we might, perhaps, have entertained an argument as to how far it was affected by §3 of the Code, which declares that, ‘‘ Public laws, which in themselves prescribe specifically that they are to take effect ‘from and after their passage,’ shall not be obligatory upon the inhabitants until published, and three days shall be allowed from the date of publication for every hundred miles distance from the capital, before a knowledge of the law shall be presumed against the inhabitants.” As this law abolishing the county court was not directly operative upon the inhabitants of the state, but concerned only a public tribunal — its officers, it is not easy to perceive its application to the question under consideration, or how it conflicts with previous adjudications upon the question.
It was contended that, as between the parties to the fi.fa., the question as to its validity was res adjudicata\ that there was a judgment in Clinch superior court, sustaining and affirming it. A careful examination of the
The judge to whom an application for an injunction is made must, before granting an order for the same, cause notice of the application to be given to the party sought to be enjoined, and of the time and place when he will hear the motion, and no order for the injunction shall be granted until such party can be heard, unless it is manifest to the judge, from sworn allegations in the bill, or the affidavit of a competent person, that the injury apprehended will be done if an immediate remedy is not afforded, when he may grant, instanter, an order restraining the party complained of until the hearing or the further order of the court, which restraining order shall have all the force of an injunction, until rescinded or modified by the court. Code, §3211. .
Now, it is apparent from the words of this section of the Code, that the judge cannot issue an injunction at all. He
When an application is made for an injunction, if it is entertained favorably, the time and place for the hearing should be fixed, and the time and manner of serving the defendant prescribed; then, if a temporary restraining order is proper, the judge should recite that it appeared from the sworn allegations, or from the affidavit of the person making it, that the injury apprehended would be done unless the restraining order issued instanter, and he should grant it, stating wherein the party complained of was to be restrained, and that it should last until the hearing provided for in the order to show cause, or until the further order of the court; and upon the hearing, if he should determine to allow the injunction, he should recite the fact that the hearing was had in conformity with the previous orders in the case, and direct that the writ of injunction issue as prayed, or that it issue restraining the defendant from such acts as are named in the order, under the penalty of-- dollars; and he should then direct such other proceedings as are usual, etc. As the statute was not pursued in this case, and as this issuing of a permanent injunction may be taken for a perpetual injunction, or something between it and the usual writ of injunction, we
Judgment reversed.