Palmer v. Jackson

• Decision Date: 16 June 1939
• Docket Number: 12821.
• Parties: PALMER v. JACKSON.
• Court: Georgia Supreme Court

4 S.E.2d 28

188 Ga. 336

PALMER v. JACKSON.

No. 12821.

Supreme Court of Georgia

June 16, 1939

Jackson as landlord obtained a distress warrant against Bruce as tenant, returnable to the municipal court of Atlanta. Palmer (the only plaintiff in error), as transferee from the tenant of the personalty levied on, filed a claim. Jackson, the landlord, then filed in the superior court an equitable petition against Bruce and Palmer, tenant and transferee attacking the bill of sale to the personalty as fraudulent praying for its cancellation, for injunction and receiver consolidation of the previous litigation with the equity suit, judgment for rent against the tenant, and other relief. No defense having been filed, and a default having been entered, a verdict and decree for the relief prayed were entered in November, 1938. On December 27, 1938 at the same term, the court entered an order reciting that the defendants had 'requested' that the verdict and decree be vacated 'on the ground that this court did not have jurisdiction of the subject-matter involved in this suit at the time of the judgment and decree therein,' and on other recited grounds; that evidence and argument as to such 'request' had been heard; and that such 'request to vacate and set aside the verdict and * * * decree' was 'denied.' On the same date Palmer, the transferee, filed in the pending equity case what he designated as a 'plea to the jurisdiction,' but containing the affirmative prayer that, after consideration of the record and pleadings, the court 'grant to defendant all and full relief, equitable and legal, from the judgment rendered in this case at said trial, as may to the court seem just and proper.' This pleading contained the ground that the court had no jurisdiction to pass on the issues in the distress-warrant proceeding, because the plaintiff had not obtained a judgment therein; and had no jurisdiction of the subject-matter of the suit, because the 'levy' did not show that it was 'valid,' and there was no 'legal return' of the distress warrant; and for other reasons assigned. On the date of the overruling of the motion to set aside, the court entered an order overruling and denying this plea and prayer. Thereafter, on December 31, 1938, the defendant assignee filed the pleading here in question, which he designated as 'his petition and/or motion to set aside the said verdict * * * and decree,' and entitled with the names of the parties and the case number as they appeared in the pending suit, although he also named himself as plaintiff and prayed for process against the former plaintiff as defendant. Besides praying for other relief, he asked that the verdict and decree in the pending suit be vacated and set aside. The essential grounds of this new pleading were that the court did not have jurisdiction of the former petition, because it did not set out a cause of action, for the reasons stated; and that the verdict and decree were void, because the property levied upon was not sufficiently described in the return of the distress warrant, the verdict and decree. All of the preceding facts appeared in the new pleading, and were undisputed. The court, passing on the pleadings, the record, and these facts, without a jury, under an agreement of the parties, entered an order in January, 1939, that 'the foregoing motion * * * is overruled and denied.' The movant failed to except to either of the previous December orders, denying his motion and prayer to vacate and set aside the verdict and decree. In his present bill of exceptions to the January order he assigns error on the ground that it is 'contrary to law,' and for the 'following specific reason,' that the trial court 'could and would have found' that under the return of levy of the distress warrant the property was insufficiently described to give the court jurisdiction; and also on the ground that the court 'could and would have found' that there was no proper return of the distress warrant, with proper pleadings; and 'the court did take jurisdiction of said distress warrant proceeding, consolidate the same and try the same, and render judgment against [the defendant tenant] and against [the] defendant [transferee] in said distress-warrant proceeding in consolidation with said suit in equity, * * * and refused to set aside the said verdict * * * and decree, * * * and thereby caused petitioner and/or movant to lose the property seized and sold under the said verdict * * * and decree of the court.'

C. E. Kay, of Atlanta, for plaintiff in error.

W. E. Harclerode, of East Point, and Ezra E. Phillips, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

JENKINS Justice.

1. A judgment of a trial court, which after a writ of error stands unreversed, or to which no exception has been...