Am. Grocery Co v. Kennedy

• Decision Date: 08 March 1897
• Citation: 28 S.E. 241,100 Ga. 462
• Parties: AMERICAN GROCERY CO. v. KENNEDY.
• Court: Georgia Supreme Court

28 S.E. 241

100 Ga. 462

AMERICAN GROCERY CO.

v.KENNEDY.

Supreme Court of Georgia.

March 8, 1897.

Appeal—Review—Action at Request of Plaintiff in Error —Judgment—Submission to Jurisdiction.

1. Where, during the pendency of a claim case, a motion was made to dismiss the levy, upon the ground that the judgment upon which the execution issued was void, which motion was overruled, and exceptions pendente lite were filed by the claimant; and where, at a subsequent term of the court, the case was tried upon its merits, and resulted in a verdict in favor of the claimant to set aside which verdict the plaintiff made a motion for a new trial; and where, upon the hearing of such motion, the trial judge, at the suggestion of the plaintiff's counsel, reviewed the judgment first above referred to, and, reversing that ruling, denied the new trial, for the reason that the judgment upon which the execution was founded was void as against the claimant, and that, as a consequence, all the subsequent proceedings were nugatory, — held, that even if the action of the trial judge in reviewing the first ruling was irregular, because of its not being within any of the exceptions taken in the motion for a new trial, yet, inasmuch as such ruling was made at the request and induced by the action of the plaintiff, he cannot, upon exception to the judgment overruling the motion for a new trial, be heard to urge that the court had no jurisdiction to render the judgment which he himself invited, and of which he now seeks to complain. See Luther v. Clay (decided at this term) 28 S. E. 46.

2. While the commencement of an action is indispensable to the rendition of a judgment, and ordinarily the filing of a writ is indispensable to the commencement of an action, yet a defendant may, in so far as it affects himself, waive the statutory period within which the writ is by law required to be filed, and thus voluntarily submit to the jurisdiction, and subject himself to a judgment; but such waiver does not bind third persons, nor confer such jurisdiction upon the court as will authorize it to render a judgment which will affect them; and a jndgment rendered in such a case, though binding the property of the defendant, will be void as to third persons.

3. The execution upon which the claim was founded being void as against the claimant, the court did not err in refusing to disturb, upon a motion for new trial, a verdict in favor of the claimant.

(Syllabus by the Court.)

Error from city court of Savannah; T. M. Norwood, Judge.

Intervention by E. J. Kennedy, as claimant of a stock of goods levied on under a judgment in favor of the plaintiff in the action of the American Grocery Company against T. B. King. There was judgment for claim-ant. From the judgment overruling his motion for new trial, plaintiff brings error. Affirmed.

L. J. Brown, Jacob Gazan, and Garrard, Meldrim & Newman, for plaintiff in error.

A. C. Wright, for defendant in error.

ATKINSON, J. The American Grocery Company brought an action upon an open account against T. B. King, in the city court of Savannah. Upon the petition is found the following entry: "Due and legal service of the within petition acknowledged, copy, process, copy process, and time of filing waived, and the account acknowledged to be correct. This 15th day of January, 1895." This was signed by defendant's attorneys. The petition, with this entry upon it, was filed on February 5, 1895, that day being the first day of the February term (to which term the suit was brought), upon which date judgment was rendered by the court for plaintiff. Execution issued from this judgment, and was levied upon a stock of goods, fixtures, and furniture contained in a certain store house in Savannah, to which E. J. Kennedy interposed his claim. Upon the trial of the claim case, claimant moved the court to dismiss the levy, upon the ground that the judgment upon which the fi. fa. was founded was not, as against him and his interest, a valid and legal judgment, for the reason that the court, at the time of rendering the judgment, was without jurisdiction to render a judgment that would be valid as against third persons, and, in support thereof, submitted the original record of the case in which judgment was rendered. The judge then presiding overruled this motion, and during the term claimant excepted pendente lite. Upon the trial of the claim case, there was a verdict for the claimant. Plaintiff moved for a new trial. Afterwards said motion came on to be heard before the successor of the judge who had presided on the trial of the case. Counsel for plaintiff suggested to counsel for claimant that they first argue and submit to the court the question of the validity of the plaintiff's judgment as against the claimant. Acting upon this suggestion of plaintiff's counsel, the judge, on March 31, 1896, rendered judgment sustaining the motion to dismiss the levy. Afterwards argument was heard on the motion for new trial, plaintiff's counsel insisting that the court had no jurisdiction to review the judgment refusing to dismiss the levy, and that the judgment which the court rendered on March 31st was a nullity, there having been no motion for a new trial made by claimant to correct the alleged error in refusing to dismiss the levy. Afterwards the court rendered its opinion overruling the motion for new trial, not, however, upon the grounds contained in the motion, but because the court held that there was error in refusing to dismiss the levy, and that, al though there was no motion for a new trial by claimant, yet, the court finding the...