Wheeler v. Walker, 55 Ga. 256

Wheeler v. Walker

55 Ga. 256 | Ga. | 1875

Warner, Chief Justice.

This was an application for a writ of mandamus requiring the sheriff of Sumter county to accept an affidavit of-illegality to an execution which had been levied on the petitioner’s property which' had been tendered to the sheriff, and which he had refused to accept, (a copy of which affidavit of illegality was attached to the petition,) or that the sheriff appear at the next term of Sumter superior court and show cause why he should not do so, and in the meantime that he desist and forbear to sell the property so levied on until the further order of the court. The presiding judge of said court, at chambers, granted the following order:

“ It is ordered that the respondent accept the affidavit of illegality, or show cause at the next term of Sumter superior court, why the mandamus should not be made absolute, and until the hearing, he is ordered to suspend the sale of the property levied on, on the fi. fa. mentioned in the affidavit of illegality.”

The bill of exceptions recites that by consent of counsel on the 3d day of July, 1875, at chambers, the application for the mandamus nisi, as prayed for, was heard before the presiding judge, all notice being waived, when a demurrer to the mandamus, (meaning, we suppose, to the application for mandamus,) and objections to granting the injunction was heard, and after hearing argument, the judge granted the before recited order, which is called in the bill of exceptions an injunction ; whereupon the sheriff excepted.

1. When the case was called for argument here, a motion was made to dismiss the writ of error as having been prematurely brought, as there had been no judgment rendered by the court *258below on the hearing of the mandamus nisi at the court to which it was made returnable, and that the case was not embraced within the provisions of the act of 1870, providing for the bringing up to this court injunctions prayed for in equity causes. By the 4250th section of the Code, it is declared that no cause shall be carried to the supreme court upon any bill of exceptions so long as the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause, but the party at any 'stage of the cause may file his exceptions on the record, etc. A writ of mandamus is a common law writ, and under the constitution of this state the superior courts'alone havejurisdiction to issue it. The judges of the superior court may grant a mandamus nisi at any time on proper showing made, but the return must be made in term time: Code, section '3201, 247. The judge, at chambers, had no authority unde the law to hear and. determine a demurrer to an application for a writ of mandamus nisi. The judges of the superior courts, in vacation, have only the power and authority to hear and determine demurrers to bills in equity, under the provisions of the act of 1869. The granting the mandamus nisi, to be heard and determined at the next term of the superior court, was no final disposition of the cause, and the judge might well have overruled the defendant’s demurrer to the application, on the ground that he had no power or authority to hear and decide it under the law, at chambers. A judge of the superior court cannot exercise any power out of term time except the authority is expressly granted : Code, section 249.

2. It is assumed in the bill of exceptions aud was urged on the argument that the order of the judge., as it appears in the record, granting the mandamus nisi, was an injunction, and therefore could be brought to this court on writ of error as an injunction granted in an equity cause, under the provisions of the act of 1870. The reply is. that the application for the writ of mandamus was a common law proceeding, and *259no injunction was prayed for and no injunction was granted by the. judge. The prayer of the petitioner was that the sheriff might desist and forbear to sell the property levied on until the further order of the court. The legal effect of the prayer of the petitioner was for a supersedeas until the mandamus nisi could be heard and determined, and such is the legal effect of the order of the judge. The order of the judge merely suspends the sale, and is nothing more than a supersedeas of the sale of the property by the sheriff until the mandamus nisi granted by him could be heard and decided by the superior court as provided by law. The judge had the power and authority, under the law, to grant the supersedeas, as he did, if, in his judgment, the ends of justice required it: Code, section 247.

This being a proceeding on the common law side of the court, and no judgment having been rendered in the ease by the court below which this court can review, the writ of error is dismissed as having been prematurely brought to this coui t.