Davis v. Dunn

Supreme Court of Georgia

Davis v. Dunn

74 Ga. 36, 1884 Ga. LEXIS 353

CourtSupreme Court of Georgia

DecidedSeptember 16, 1884

StatusPublished

Cited by2 cases

This text of 74 Ga. 36 (Davis v. Dunn) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Davis v. Dunn, 74 Ga. 36, 1884 Ga. LEXIS 353 (Ga. 1884).

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Opinion

Jackson, Chief Justice.

1. The bill of exceptions refers to a motion for a new trial and grounds thereof in the transcript of the record. No such motion appears there; for want of it the case cannot be intelligently ruled; and as no suggestion of a diminution of the record was made, or time asked within which to perfect it, we see no proper action, in view of the rights of all parties and counsel, but to dismiss the writ of error.

2. The debt was created prior to the constitution of 1868, and the homestead under that constitution could not affect it. 53 Ga., 485. The transaction was not a novation, but a mere renewal of the old note. See same case.

3. Section 2028 of the Code has no application to this case, because this homestead was always subject to this debt, being a debt made before the constitution of 1868, [38]*38and was liable to be levied on, without regard to those “ classes for which the homestead is bound under the constitution,” such as purchase money, removal of encumbrances, etc. So that the very words of section 2028 leave out this debt as one requiring an affidavit before levy.

Therefore, whether the case be heard or not, the j udgment would be an affirmance. But as there is no motion for a new trial in the record, and no evidence in the bill of exceptions, the better disposition of the case is to dismiss it, and thereby affirm the judgment.

Writ of error dismissed.

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Jackson, Chief Justice.

1. The bill of exceptions refers to a motion for a new trial and grounds thereof in the transcript of the record. No such motion appears there; for want of it the case cannot be intelligently ruled; and as no suggestion of a diminution of the record was made, or time asked within which to perfect it, we see no proper action, in view of the rights of all parties and counsel, but to dismiss the writ of error.

2. The debt was created prior to the constitution of 1868, and the homestead under that constitution could not affect it. 53 Ga., 485. The transaction was not a novation, but a mere renewal of the old note. See same case.

3. Section 2028 of the Code has no application to this case, because this homestead was always subject to this debt, being a debt made before the constitution of 1868, [38]*38and was liable to be levied on, without regard to those “ classes for which the homestead is bound under the constitution,” such as purchase money, removal of encumbrances, etc. So that the very words of section 2028 leave out this debt as one requiring an affidavit before levy.

Therefore, whether the case be heard or not, the j udgment would be an affirmance. But as there is no motion for a new trial in the record, and no evidence in the bill of exceptions, the better disposition of the case is to dismiss it, and thereby affirm the judgment.

Writ of error dismissed.

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Bluebook (online)

74 Ga. 36, 1884 Ga. LEXIS 353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-dunn-ga-1884.

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