Lowry v. Williams

47 Ga. 387

Opinion

Montgomery, Judge.

This was an application to enjoin a sale of land levied on by virtue of a fi. fa. issued on a decree had by the defendant in error against the plaintiff in error. The injunction was asked for on three grounds: First, that the consideration of the indebtedness on which the decree was founded, was slaves. Secondly, an application for homestead, out of the land levied on, was pending in the Superior Court, by appeal from the Ordinary. Thirdly, that the land was insufficiently described in the sheriff’s advertisement. The bill- also states that an affidavit of illegality on the first two grounds had been filed, overruled, and exceptions taken, but that, owing tó a miscarriage in the mails, the bill of exceptions had failed to reach counsel for plaintiff in error, after being certified by the Judge in time to take the subsequent steps required by the Code, and the appeal to the Supreme Court was, therefore, abandoned. The first question has been disposed of by the Supreme Court of the United States, in White vs. Hart, decided December, 1871. Notice of the pendency of the application for homestead on the day of sale would protect the plaintiff in error against one of the other two grievances, and an affidavit of illegality would reach the third, the second advertisement complained of having been made after the filing of the first illegality. In the cases of Pinkerton vs. Tumlin, 22 Georgia, Kilgore vs. Beck, 40 Georgia, 293, where an injunction was granted, the sheriff was proceeding to dispossess the. owners of the homestead. ’VY’e do not see, therefore, that the discretion of the Court below has been manifestly abused in refusing this injunction.

Judgment affirmed.