Opinion
18923.
SUBMITTED APRIL 11, 1955.
DECIDED JUNE 13, 1955.
Cancellation, etc. Before Judge Humphrey. Washington Superior Court. December 6, 1954.
J. D. Godfrey, Casey Thigpen, for plaintiff in error.
T. A. Hutcheson, contra.
1. The allegations of the equitable petition — to the effect that a judgment on open account was obtained in a justice's court against the petitioner, and that pending an appeal to the superior court the defendant fraudulently procured the premature issuance of an execution which was entered on the general execution docket — were sufficient to set forth a cause of action for removal of the execution from the general execution docket.
2. It affirmatively appearing from the record that the judgment ordering cancellation of the record of the execution and refusing to dismiss the appeal to the superior court was rendered prior to the term to which the case was returnable, to wit, the March term 1955, the court was without jurisdiction to try the case at that term.
SUBMITTED APRIL 11, 1955 — DECIDED JUNE 13, 1955.
Arthur Hartley instituted an equitable proceeding against S. T. Hartley, in Washington Superior Court, alleging substantially the following: On December 12, 1953, defendant obtained a judgment on an open account against petitioner in a justice's court. On December 15, 1953, within the time allowed by law, petitioner, after paying the costs and posting bond, filed with the justice his appeal to the superior court. On December 17, 1953, the appeal was duly transmitted to the superior court by the justice and entered on the docket of the superior court by the clerk thereof. Notwithstanding the fact that an appeal had been entered, the attorney for defendant or defendant himself caused what purports to be an execution signed by the justice, dated December 17, 1953, in favor of defendant and against petitioner, to be recorded on the general execution docket on December 18, 1953. The purported execution, which was not signed by the justice, was fraudulently obtained by the attorney for defendant or by defendant himself, and petitioner is without an adequate remedy at law. The prayers were: That process and a rule nisi issue; that the court order the execution removed from the record until final trial of the case, and for general equitable relief.
To the petition the defendant interposed a general demurrer, and also filed an answer which contained a prayer that the alleged appeal be dismissed as a nullity, the same not having been transmitted to the clerk of the superior court in the manner prescribed by law.
The justice of the peace who rendered the judgment in that court testified in part: He has been shown the execution that was issued and placed upon the general execution docket, and it did not contain his signature. He did not sign the execution and did not place it on the general execution docket. The appeal bond was filed with him on December 15, 1953, and was approved by him. He did not transmit the appeal papers from the justice court to the clerk of the superior court and did not authorize anybody to do so for him. He approved the appeal bond, but did not remember what he did with it and the other papers in the case.
The attorney for the defendant in the equitable case testified: On December 16, 1953, he went to lunch and left his office open and on his return found the papers in the justice court case, including the appeal affidavit and bond, on his desk. On the following day he placed manuscript covers upon the papers and filed them with the clerk of the superior court. He was not authorized or directed by the justice of the peace who tried the case to file them. He did not know who left the papers on his desk. He filed them without any authority whatever.
After hearing evidence, the trial court overruled the demurrer that was interposed to the equitable petition, ordered that the clerk of the superior court cancel of record the execution from the general execution docket, the same being prematurely issued, and denied the defendant's prayer that the appeal to the superior court be dismissed.
To the above rulings the defendant assigned error in a direct bill of exceptions.
1. The ruling in the first headnote does not require elaboration.
2. The terms of Washington Superior Court commence on the first Mondays in March and September. The equitable petition seeking the removal of the execution from the general execution docket was sanctioned on November 12, 1954, and a rule nisi was issued. On December 4, 1954, the defendant filed his general demurrer and an answer. On December 6, 1954, after hearing evidence, the trial court ordered the clerk of the superior court to cancel the execution of record, and denied the defendant's prayer that the appeal to the superior court be dismissed as a nullity, the same not having been transmitted to the clerk of the superior court in the manner prescribed by law.
It affirmatively appearing from the record that the order complained of was rendered prior to the term to which the case was returnable, to wit, the March term, 1955, the judgment was erroneous for the reason that the court was without jurisdiction to try the case and enter a final decree therein without an express agreement of the parties. Code (Ann. Supp.) §§ 81-201, 81-1003; Henderson v. Henderson, 206 Ga. 23 (3) ( 55 S.E.2d 578). Furthermore, under the pleadings an issue of fact is raised, and therefore the verdict of a jury is necessary. Code § 37-1101.
Judgment affirmed in part and reversed in part. All the Justices concur.