Lindsey v. Porter & Garrett

78 S.E. 848, 140 Ga. 249, 1913 Ga. LEXIS 96

• Court: Supreme Court of Georgia
• Decided: July 18, 1913
• Status: Published

Opinion

Beck, J.

1. Where upon a petition filed in 1892 to foreclose a mortgage in equity a judgment was rendered foreclosing the mortgage, while, so far as the same may purport to be a general personal judgment, it is dormant because of failure to issue ah execution thereon in terms of the statute relating to dormancy of judgments, it is valid and enforceable as a decree foreclosing a mortgage. Conway v. Caswell, 121 Ga. 254 (4S S. E. 956, 2 Ann. Cas. 269).

July 18, 1913.

Illegality of execution. Before Judge Daniel. Butts superior court. February 23, 1912.

W. A. Thompson and John B. L. Smith, for plaintiff in error. O. M. Duke, contra.

2. The decree is not invalid and void because rendered without a verdict of a jury. The mortgagee filed his petition in equity to foreclose the mortgage under the provisions of the Civil Code, § 3305. There was no appearance by the mortgagor. There was no question of fact involved requiring decision by a jury, and the judge properly rendered the decree without the verdict of the jury, under the provisions of the Civil Code, § 5422.

Judgment affirmed.

All the Justices concur.