Hackenhull v. Westbrook

53 Ga. 285

• Court: Supreme Court of Georgia
• Decided: July 15, 1874
• Status: Published

Opinion

Trippe, Judge.

1. The court below committed no error in holding that a mortgage on land must be foreclosed in the county where the land lies. This was the provision of the act of 1799, Cobb Digest 570, and is transferred to the Code, section 3962. This being so, the claimant in this case had the right to object to the mortgage fi. fa. issued from the superior court of Dawsou county and to the proceeding to foreclose in that county, when the land claimed was situate in the county of Forsyth. If the judgment or record showed that the court rendering the judgment did not have jurisdiction of the subject matter, any person whose rights would be affected could, at any time, make the objection : Code, sections 3594, 3596. .

2. But it was error in the court after the rejection of tbe^/L fa. to direct the jury to render a verdict for the claimant. In Baker vs. Shepherd, 37 Georgia, 12, it was held “that when the court rejected the plaintiff’sJi. fa. when offered in evi-' denee in a claim case, it was error to allow a verdict to be taken for the claimant. The court should have dismissed plaintiff’s ease.”

For this reason and on this ground the judgment is reversed.