184 Ga. 769 | Ga. | 1937
On December 20, 1932, Mrs. Lola Athearn filed in the city court of Atlanta a suit for damages against Armour & Company. On June 20, 1933, a verdict and judgment for $5000 were obtained by default against said company. A fi. fa. immediately issued on this judgment, and on June 21, 1933, the ii. fa. for value received was transferred and assigned to Prank Winn. On June 26, 1933, at the same term of said court. Armour & Company filed its petition to set aside said default judgment, together with a traverse of the sheriff’s return of service, setting up that the judgment was void because there was no valid legal service of process on defendant, and the trial
“Any plaintiff or transferee may bona fide, and for a valuable consideration, transfer any execution to a third person, and in all cases the transferee of any execution shall have the same rights, and be subject to the same equities, and subject to the same defenses as the original plaintiff in judgment was.” Code, § 39-401. See also Colquitt v. Bonner, 2 Ga. 155; Hammett v. Christie, 21 Ga. 251, 253; Rawson v. McJunkins, 27 Ga. 432, 434. Judgments are not negotiable in a strict commercial sense, though they may be transferred by indorsement. See Western Bank v. Maverick Bank, 90 Ga. 339, 344 (16 S. E. 942, 35 Am. St. R. 210). Assignee thereof is a proper party in a proceeding to set aside the judgment and cancel the execution issuing thereon. See Slayton v. Jones, 15 Ga. 89. See also Code, § 110-707; Malone v. Kelly, 101 Ga. 194, 201 (28 S. E. 689). The fact that an execution issues on a void judgment will not give it vitality. Jowers v. Kirkpatrick Hardware Co., 21 Ga. App. 751 (94 S. E. 1044). If the judgment and execution are void in the hands of the original judgment creditor, they are void and without effect, even though transferred and assigned to another for a valuable consideration, and may be so held in a proper proceeding. See Heyward v. Kinney, 63 Ga. 353; Register v. Southern States Phosphate &c. Co., 157 Ga. 561 (122 S. E. 323).
A judgment rendered against a defendant where there has been no service of process or waiver thereof is a mere nullity. Where, however, the record shows an entry of service by the sheriff, the judgment is binding until such entry is traversed and set aside. Davant v. Carlton, 57 Ga. 489; Heath v. Miller, 117 Ga. 854, 864 (44 S. E. 13); Code, § 110-709.
Dismissal of an action for want of prosecution, where the defendant has filed a cross-action seeking equitable relief, does not dismiss the issues raised by the cross-petition. This is true where the relief sought affects codefendants in the proceeding. Accordingly, dismissal of the equitable petition brought by Eidson and others, judgment creditors of Mrs. Athearn, the assignor of the judgment and execution involved in this case, against her, against the assignee of the execution, Frank Winn, and against the judg
Applying the foregoing principles, the court did not err in overruling the demurrer of the assignee, Winn, to the amendment of the cross-action filed by Armour & Company in the equitable petition filed by the judgment creditors of Mrs. Lola Athearn, the assignor of the void judgment obtained against said company and transferred» by her to Frank Winn. Accordingly, the judgment permanently enjoining Winn from enforcing such judgment and execution, declaring the same null and void, and canceling it, upon a finding that there had been no valid service upon the defendant company, was not error as against said assignee for any of the reasons assigned.
Judgment affirmed.