Parker & Dunn v. State

Hines, J. This case is in this court upon certiorari to review the judgment of the Court of Appeals. 36 Ga. App. 370 (136 S. E. 800). The facts sufficiently appear from the report cited, with this additional statement: The condemnation petition and the order issued thereon, requiring the defendant to file a defense, if any he had, within thirty days from the date of the filing of [257] said petition, were not served upon C. B. Wellmaker, the defendant. He did not acknowledge service, nor appear and plead. On the day the condemnation petition was filed the State applied for an order to sell the seized automobile, upon the ground that some time would elapse before the issue in the case could be tried, that there was considerable expense atténding the keeping of the auto-. mobile, and that the same was fast deteriorating in value. The court passed an order requiring Wellmaker to show cause, on November 11, 1925, why an order should not be granted for the sale of the automobile as prayed by applicant, and that the petition and order be served upon Wellmaker at least three days before the hearing. The petition for said order and the rule nisi issuing thereon, were not served upon the defendant therein, nor upon intervenors. In the judgment finding in favor of the intervenors, the court ordered the seized automobile to be stored with intervenors. It appears from the evidence that this was to be done without charge for storage. On the day of the sale the sheriff telephoned to the place of business of intervenors for them to send the automobile to him. His message was received by a negro mechanic, who, without the knowledge or consent of intervenors, took the automobile down to the sheriff. Another employee of the intervenors was present at the sale, and bid upon the automobile, but this was done without the knowledge and not at the instance of intervenors. Under the Civil Code (1910), § 6069, no judicial officer shall grant any order for the sale of personal property under § 6068, where the defendant in process or his attorney has not had at least two days notice of the applicant’s intention to apply for such order, which notice shall specify the time and place of hearing; and in no case shall such notice be dispensed with, except where it shall be made to appear that it is impracticable to have such notice perfected, or the case is an urgent one, in which latter event the court may, in the exercise of a sound discretion, grant such order without notice. Whenever a speedy sale of personal property is made under the provisions of the above-cited section, it should affirmatively appear' that two days notice of the applicant’s intention to apply for the order of sale was duly given, unless the case falls within some one of the exceptions specified in that section. Simmons v. Cooledge, 95 Ga. 50 (21 S. E. 1001). [258] By parity of reasoning, if such notice is not given, it should affirmatively appear that the notice was not given because it was impracticable to have such notice perfected, or that the case was an urgent one. Neither of these facts affirmatively appears in this case. It affirmatively appearing that the notice was not given to the defendant in the process, ánd it not affirmatively appearing that the case fell within either of the exceptions to the requirement for notice, the court was without jurisdiction to pass the order for the speedy sale of the property. “The judgment of a court having no jurisdiction of the person and subject-matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it.” Civil Code (1010), § 5964. The judge being without jurisdiction 'to grant the order for the sale of the automobile as the property of Wellmaker, the defendant in the process, jurisdiction could not be conferred by the fact that the intervenors were chargeable with notice of the application already of file, praying for such order, and made no objection to the grant of the order. Bell v. Rich, 73 Ga. 240; Cornett v. Ault, 124 Ga. 944 (53 S. E. 460). No litigant has his day in court when the court has no jurisdiction to render judgment or grant an order. Applying the principles above ruled, the order of the court for the speedy sale of this property was null and void; and under the facts appearing in the record, it can not be held that the intervenors were estopped from attacking the validity of this order, especially in view of the facts that the automobile was sold at a mere song, and was bought in at the’sheriff’s sale by the sheriff’s deputy. Judgment reversed. All the Justices concur, except Hill and Gilbert, JJ., who dissent.