Cummings v. Clegg

Bleckley, Chief Justice. Referring to the official report for details, the material facts may be summarized as follows : A mortgage ji. fa. was levied upon land, and a claim interposed, after which the claim case, it seems, was absorbed by a bill and cross-bill, to which the plaintiff in ji. fa. was a party on one side, and the claimant and the defendant ia.ji.fa. were parties on the other side. This equity cause was tried, adjudicated in favor of the plaintiff in ji. fa., and thereupon was carried to the Supreme Court by the claimant and the defendant in ji.ja. The writ of error was dismissed and the judgment below thereby affirmed. The plaintiff in fi. fa. attempting then to proceed with his levy and enforce the same, the defendant filed an affidavit of illegality, upon the grounds that the case was still pending in the Supreme Court; that no remittitur from that court had been filed below; that the judgment of the Supreme Court had not been made the judgment of the superior court; and “that by reason of said cause having been carried to said Supreme Court by writ of error, said ji. fa. was superseded, which supersedeas has remained and still remains in force, and will so remain until the judgment of said Supreme Court is made the judgment of said superior court of Dooly county.” Before the affidavit of illegality was heard and determined, the remittitur from the Supreme Court was entered on the minutes of the superior court. Upon the hearing of the affidavit, the presiding judge overruled and dismissed the same and gave judgment for the costs against the affiafit. The writ of error and the pendency of the same in the Supreme Court, constituted no obstacle to proceeding with the levy, unless a supersedeas was duly obtained; and this could be done only by giving bond and security, or filing an affidavit in the terms of section 4268 of [766] the code. The affidavit of illegality sets up that by reason of the cause having been carried to the Supreme Court by writ of error, the ji. fa. was superseded; but the law is that the writ of error does not operate as a supersedeas unless.the statutory requirement as to bond and security or affidavit be complied with. Truluck vs. Peeples, 1 Ga. 1; Allen vs. Mayor, etc., 9 Ga. 286; Irwin vs. Jackson, 34 Ga. 103-4. In speei.al applications for extraordinary remedies, such as injunction, etc., other sections of the code apply. (§§3212, 3215, 3216, 3206, etc.) Notwithstanding the general language of the opinion in Western & Atlantic Railroad vs. The State, 69 Ga. 524, it may well be doubted whether a writ of error or bill of exceptions, even in these extraordinary cases, or any of them, will operate as a supersedeas, without some special order in connection therewith. Citing this case in Howard vs. Lowell Machine Co., 75 Ga. 328, it is said: “Had there been a case between these parties and the complainant respecting the same subject-matter pending in this court, and had the decision excepted to been superseded, then it would have been taken from his cognizance, and any order modifying the decree during the pendency of the wi'it of error, would have been coram, non judice and void.” And important element in this extract consists of the words “had the decision excepted to been superseded.” Iiow superseded ? By the order of the judge and compliance therewith as prescribed in section 3212, supra. It should be observed further, that did a writ of error without a supersedeas divest the court below of power to proceed judicially in the cause covered by such writ of error, it would not follow that a party might not, through the sheriff, proceed with ministerial acts to realize the money due upon a fi. fa. Surely to hinder such acts, done not by order [767] of court but at tbe instance of a party, a supersedeas regularly obtained would be necessary. The result is, that the court below committed no error. Judgment affirmed.