Hartley v. Hartley

Supreme Court of Georgia

Hartley v. Hartley

87 S.E.2d 851, 211 Ga. 616, 1955 Ga. LEXIS 407

CourtSupreme Court of Georgia

DecidedJune 13, 1955

Docket18923

StatusPublished

Cited by3 cases

This text of 87 S.E.2d 851 (Hartley v. Hartley) 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

Hartley v. Hartley, 87 S.E.2d 851, 211 Ga. 616, 1955 Ga. LEXIS 407 (Ga. 1955).

Pincite

Opinion

Mobley, Justice.

The ruling in the first headnote does not require elaboration.

The terms of Washington Superior Court commence on the first Mondays in March and September. The equitable petition seeking the removal of the execution from the general execution docket was sanctioned on November 12, 1954, and a rule nisi was issued. On December 4, 1954, the defendant filed his general demurrer and an answer. On December 6, 1954, after hearing evidence, the trial court ordered the clerk of the superior court to cancel the execution of record, and denied the defendant’s prayer that the appeal to the superior court be dismissed as a nullity, the same not having been transmitted to the clerk of the superior court in the manner prescribed by law.

It affirmatively appearing from the record that the order complained of was rendered prior to the term to 'which the case was returnable, to wit, the March term, 1955, the judgment was erroneous for the reason that the court was without jurisdiction to try the case and enter a final decree therein without an express agreement of the parties. Code (Ann. Supp.) §§ 81-201, 81-1003; Henderson v. Henderson, 206 Ga. 23 (3) (55 S. E. 2d 578). Furthermore, under the pleadings an issue of fact is raised, and therefore the verdict of a jury is necessary. Code § 37-1101.

Judgment affirmed in part and reversed in part.

All the Justices concur.

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Mobley, Justice.

The ruling in the first headnote does not require elaboration.

The terms of Washington Superior Court commence on the first Mondays in March and September. The equitable petition seeking the removal of the execution from the general execution docket was sanctioned on November 12, 1954, and a rule nisi was issued. On December 4, 1954, the defendant filed his general demurrer and an answer. On December 6, 1954, after hearing evidence, the trial court ordered the clerk of the superior court to cancel the execution of record, and denied the defendant’s prayer that the appeal to the superior court be dismissed as a nullity, the same not having been transmitted to the clerk of the superior court in the manner prescribed by law.

It affirmatively appearing from the record that the order complained of was rendered prior to the term to 'which the case was returnable, to wit, the March term, 1955, the judgment was erroneous for the reason that the court was without jurisdiction to try the case and enter a final decree therein without an express agreement of the parties. Code (Ann. Supp.) §§ 81-201, 81-1003; Henderson v. Henderson, 206 Ga. 23 (3) (55 S. E. 2d 578). Furthermore, under the pleadings an issue of fact is raised, and therefore the verdict of a jury is necessary. Code § 37-1101.

Judgment affirmed in part and reversed in part.

All the Justices concur.

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Bluebook (online)

87 S.E.2d 851, 211 Ga. 616, 1955 Ga. LEXIS 407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hartley-v-hartley-ga-1955.

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