Griffin v. Nix

125 S.E. 732, 33 Ga. App. 136, 1924 Ga. App. LEXIS 768

Opinion

Luke, J.

1. A petition for a rule against the sheriff of a city court will not lie in the superior court, for failure to make proper returns of money received by him from the sale of property under an execution issued from and returnable to the city court, unless there is a prayer, supported by appropriate averments, for special equitable relief. Pyles v. Easterling, 30 Ga. App. 783 (119 S. E. 351); Pound v. Smith, 146 Ga. 431 (2) (91 S. E. 405).

2. Jurisdiction of the subject-matter is given only by law, and can not be conferred by consent or waiver.

{a) But where such a proceeding in the superior court as mentioned above was based upon an execution which was duly levied, and it appeared only from the sheriff’s answer (which was traversed by the plaintiff) that, after the levy of the execution,' the same property was levied upon and sold under a city-court execution, and the funds arising from the Sale were paid out under order of the city court, and the parties were at issue as to all the material facts, it was erroneous for the court to dismiss the proceeding on the defendant’s oral motion, urged first at the trial term, without hearing- any evidence upon the issues made by the pleadings.

Decided December 9, 1924. Hendricks & Hendricks, for plaintiff. Jeff 8. Story, for defendants.

Judgment reversed.

Broyles, O. J., and Bloodworth, J., concur.