Jackson v. Miles

Simmons, Chief Justice. "When this case was here before (94 Ga. 484), it was held that the city court had “no power to adjudge or decree that the debt recovered should be collected out of specific realty,” and that the judge of the superior court did not err in granting a restraining order against the plaintiff in execution and the sheriff, preventing them from selling the realty levied upon. When the remittitur from this court was returned to the superior court, counsel for the plaintiff in execution made a motion to enter an order to the effect 513 that the case having been carried to the Supreme Court and the decision of the superior court having been affirmed, it was ordered and decreed that the verdict and judgment in favor of Mollie Jackson against the trustees of Shady Grove Baptist Church (naming them) be set aside and the execution thereon be quashed and the case in which the verdict and judgment were entered stand as if no verdict and judgment had been rendered therein. This motion was overruled, and Mollie Jackson excepted. There was no error in refusing to grant this motion. The verdict and judgment were had in the city court and not in the superior court; and the judgment was declared to be void only in so far as it adjudged or decreed that the debt should be levied and collected out of specific realty. The declaration in the original suit contained no averment that the' realty was chargeable with the payment of the plaintiff's debt. It made no reference to it at all, but was an action upon an open account against certain persons as trustees of Shady Grove Church, and the verdict was in favor of the plaintiff for the amount sued for. On this verdict the plaintiff entered up the judgment complained of, creating a lien on the realty belonging to the church, and this we held she had no right to do. We think, therefore, that the judge was right in refusing to pass an order setting aside the judgment in toto, quashing the execution and in effect reinstating the case in the city court. The judgment being void only in part, the plaintiff could move in the city court to amend or vacate it as she might see proper. After the court had refused to grant the motion above referred to, counsel for the plaintiffs in the equitable petition moved to make the interlocutory injunction permanent, and this motion was granted over the objection of counsel for the defendant therein. In this we think the court was right. It appearing that there was no issue of fact involved, it was the only lawful and proper result of the proceedings, so far as related. to the sale of the realty. 514 It having been decided that the judgment in so far as it undertook to establish a lien on the realty was a nullity, nothing remained to be done but to perpetually enjoin the levy and sale under the execution. Judgment affirmed.