Rawson v. Mills

By the Court. — McDonald J., delivering the opinion. We decide this case as it stands now, after the amendment by striking out the name of John Mills as complainant, It is now the bill of John M. Mills seeking no relief beyond, an injunction of the execution from proceeding against his land. He does not seek to disturb thejudgment or decree of the Superior Court in the county of Dougherty against J ohn Mills. The bill has not yet been amended, but the order for that purpose is in the record, and it must be so-amended in all its charges and obligations as to make it exclusively the bill of John Mills. We proceed on the principle, that if the bill, as it was brought, had been submitted to us, we should have felt bound to have overruled the decision of the Court below, so far as it respected the charges in favor of John Mills and the relief sought by him, but to have sustained it, as to the bill of John M. Mills as a defensive measure to protect his land against the operation of a decree obtained, as alleged, surreptitiously. The complainant wants a discovery of the matters charged against that decree, to be used in support of his claim of the land in Gwinnett county, and to show that the judgment should not operate as a lien against his land. In other words, that it is fraudulent as to him.. This Court in the case of Carter et al. vs. Jordan adm’r. 15. Ga. 84 and 85, have decided this point. The case of Anderson et al. vs. Sego, 19. Ga. 501, relied on by counsel for defendant in error, is not in point in this case. There, there [600] was no objection to the judgment and execution, and it was not denied but the land levied on was subject to the lien of nhe judgment, but it was insisted that there were other assets in the hands of the administrator of the defendant’s estate, which ought to have been pursued before his land was levied on. The claimant sought to bring all the parties from their ■own counties to the county of Dooly to litigate a new case, and that, one which called for a hearing and a decree to adjust the rights of all the parties. In the case under consideration, there is no necessity fora "hearing or a decree; for the same evidence which would establish the right of the complainant to a perpetual injunction on the equity side of the Court, would entitle him to a ver,diet in the claim case to-wit: that the judgment or decree in the county of Dougherty had no lien upon his land, owing •to the fraudulent circumstances under which it was obtain•ed. Judgment affirmed.