Seifert v. Holt
| Decision Date | 08 July 1889 |
| Citation | 9 S.E. 843,82 Ga. 757 |
| Parties | SEIFERT et al. v. HOLT. |
| Court | Georgia Supreme Court |
Error from superior court, Monroe county; BOYNTON, Judge.
Lofton & Moore, for plaintiffs in error.
Berner & Turner, for defendant in error.
Holt sued out a distress warrant for $300 against Seifert. It was levied upon certain property of Seifert. He filed his counter-affidavit, denying that any part of the sum claimed for rent was due, and averring that the contract upon which the rent was claimed was made and executed on the Sabbath day. He filed with the levying officer a bond for the condemnation money, with Freeman and Flanders Bros. as sureties thereon. At the August term, 1886, of said court the plaintiff obtained the following verdict: "We, the jury, find the warrant proceed;" upon which verdict Holt entered judgment against Seifert and the sureties on his bond for $300, with interest. Execution was issued upon this judgment, which was levied upon certain property as the property of the defendant, and Flanders Bros. filed an affidavit of illegality, which was returned to the court for trial. During the August term, 1888, of the court, Seifert moved to reinstate the case made by the distress warrant and the counter-affidavit, and vacate the judgment rendered in said case, because it was, under the rules of said court, set down three days in advance of trial, contrary to the laws of the state regulating the call of the docket in the superior court, and no notice being given to counsel for the defendant, who was a non-resident of the county, as to the case having been called for trial and set for a hearing. He also alleged that he had a good defense, to-wit, that the contract upon which the rent claimed was predicated, was made and entered into on the Sabbath day, thereby rendering the contract null and void. Freeman came in, and was made a party to the motion, and asked to have the judgment vacated as to him, on the ground that he was not a surety, and not bound by the judgment or by the bond, in this: that when he signed the bond, and it was tendered to the sheriff, the sheriff refused it, on the ground that Freeman would not make oath that he was worth the amount of the bond over and above the homestead exemption; whereupon he said to the sheriff that he would not be further liable on the bond. Flanders Bros. were also made parties, and asked to have the judgment set aside as against them, for the reasons alleged by Seifert in his motion, and for the additional reason that they signed the bond believing Freeman to be a security on the bond, and on the further ground that, in the absence of all the defendants, the plaintiff not having a jury to pass upon said issue, the proceeding was illegal and void, for the reason that said case came into court as a suit for rent, and the only verdict which could be had was a money verdict, finding a stated sum for the plaintiff; also that the verdict was void for another reason, viz., that it was too uncertain and vague to base a judgment on, and that the judgment was void for the reason that there was no verdict to authorize it, the verdict not having found any sum of money for the plaintiff. The affidavit of illegality of Flanders Bros. contained the same grounds as the motion to set aside the judgment. The case was submitted to the court without the intervention of a jury. The affidavit of illegality and the motion to vacate the judgment were overruled and refused, and the execution was ordered to proceed. The defendants excepted to the judgment and assigned the same as error.
The main points relied on by counsel for the plaintiff in error in the argument of the case before us were (1) that the case was not called in its order in the superior court, and the defendants being non-residents, and having no notice of the time the case was set for trial, the verdict should be set aside, in order to give them an opportunity to make their defenses before the jury. The judge who tried the case certifies that the rule agreed upon and adopted by him in the superior...
To continue reading
Request your trial
-
Hill Aircraft & Leasing Corp. v. Tyler
...in which he is a party, regardless of the fact that he has employed counsel to act for him. See in this connection Seifert v. Holt, 82 Ga. 757(3), 9 S.E. 843; Lovelace v. Lovelace, 179 Ga. 822(lc), 825, 177 S.E. 685; Sta-Power Industries v. Avant, 134 Ga.App. 952, 956, 216 S.E.2d 897. The c......
-
Beavers v. Cassells
...cannot remain away without sufficient cause and subsequently have set aside a judgment properly rendered against them.' Seifert v. Holt, 82 Ga. 757, 758(3), 9 S.E. 843. 'They are bound to take notice of the time and place of trial, and of when their presence is required. Eady v. Napier, 96 ......
-
Beavers v. Cassells
......They cannot remain away without. sufficient cause and subsequently have set aside a judgment. properly rendered against them.' Seifert v. Holt, 82 Ga. 757, 758(3), 9 S.E. 843. 'They are. bound to take notice of the time and place of trial, and of. when their presence is required. ......
-
Lovelace v. Lovelace
......They cannot remain away without. sufficient cause and subsequently have set aside a judgment. properly rendered against them." Seifert v. Holt, 82 Ga. 758 (3), 9 S.E. 843. "They are bound. to take notice of the time and place of trial, and of when. their presence is required. Eady ......