Hicks v. Walker Bros.

Court of Appeals of Georgia

Hicks v. Walker Bros.

118 S.E. 452, 30 Ga. App. 548, 1923 Ga. App. LEXIS 526

CourtCourt of Appeals of Georgia

DecidedJune 27, 1923

Docket14071

StatusPublished

This text of 118 S.E. 452 (Hicks v. Walker Bros.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hicks v. Walker Bros., 118 S.E. 452, 30 Ga. App. 548, 1923 Ga. App. LEXIS 526 (Ga. Ct. App. 1923).

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Opinion

Stephens, J.

1. A cause of action dependent for its existence upon a judicial determination finding a certain matter as true in fact, and which has accrued by reason of this judicial finding, may nevertheless be destroyed by a reversal of the finding and a subsequent judicial determination finding the contrary.

2. In a suit in behalf of a plaintiff in fi. fa., seeking to recover for an alleged violation of a forthcoming bond given by ther defendant as a claimant in a claim case, where the right of the plaintiff thus to recover is dependent upon the property in controversy having been adjudicated to be subject to the fi. fa., a judgment adjudicating the property subject will not authorize a recovery by the plaintiff when that judgment has, before the filing of the suit to recover for the alleged breach of the forthcoming bond, been judicially set. aside and a contrary judgment thereafter rendered adjudicating the property not subject to the fi. fa. [549]*549This ruling is not in conflict with the decision in Taylor v. Boynton, 7 Ga. App. 233 (66 S. E. 550), holding that the mere pendency of a certiorari by which it is sought to reverse such a judgment does not operate as a supersedeas, and therefore does not defeat the plaintiff’s suit.

Decided June 27, 1923. B. B. Jackson, John F. Echols, for plaintiff. D. K. Johnston, for defendants.

3. A judgment for the plaintiff having been rendered in the municipal court of Atlanta and the defendant’s motion for a new trial having been overruled, the certiorari was not subject to dismissal upon the ground that the motion for a new trial contained no assignment of error committed on the trial, since the petition for certiorari contains valid exceptions to the original judgment and was filed within thirty days from the rendition of that judgment. See Louisville & Nashville R. Co. v. Lovelace, 24 Ga. App. 616 (101 S. E. 718).

4. The judge of the superior court therefore did not err in sustaining the certiorari and in entering a final judgment for the defendants.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.

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Stephens, J.

1. A cause of action dependent for its existence upon a judicial determination finding a certain matter as true in fact, and which has accrued by reason of this judicial finding, may nevertheless be destroyed by a reversal of the finding and a subsequent judicial determination finding the contrary.

2. In a suit in behalf of a plaintiff in fi. fa., seeking to recover for an alleged violation of a forthcoming bond given by ther defendant as a claimant in a claim case, where the right of the plaintiff thus to recover is dependent upon the property in controversy having been adjudicated to be subject to the fi. fa., a judgment adjudicating the property subject will not authorize a recovery by the plaintiff when that judgment has, before the filing of the suit to recover for the alleged breach of the forthcoming bond, been judicially set. aside and a contrary judgment thereafter rendered adjudicating the property not subject to the fi. fa. [549]*549This ruling is not in conflict with the decision in Taylor v. Boynton, 7 Ga. App. 233 (66 S. E. 550), holding that the mere pendency of a certiorari by which it is sought to reverse such a judgment does not operate as a supersedeas, and therefore does not defeat the plaintiff’s suit.

Decided June 27, 1923. B. B. Jackson, John F. Echols, for plaintiff. D. K. Johnston, for defendants.

3. A judgment for the plaintiff having been rendered in the municipal court of Atlanta and the defendant’s motion for a new trial having been overruled, the certiorari was not subject to dismissal upon the ground that the motion for a new trial contained no assignment of error committed on the trial, since the petition for certiorari contains valid exceptions to the original judgment and was filed within thirty days from the rendition of that judgment. See Louisville & Nashville R. Co. v. Lovelace, 24 Ga. App. 616 (101 S. E. 718).

4. The judge of the superior court therefore did not err in sustaining the certiorari and in entering a final judgment for the defendants.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.

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118 S.E. 452, 30 Ga. App. 548, 1923 Ga. App. LEXIS 526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hicks-v-walker-bros-gactapp-1923.

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