Pollard v. King

63 Ga. 224

• Court: Supreme Court of Georgia
• Decided: September 15, 1879
• Status: Published

Opinion

Bleckley, Justice.

There was a levy under a fi. fa. which purported to be founded upon a judgment of the superior court, A claim was interposed to the property. The claim ease was tried, and a verdict was rendered finding the property subject. Before a sale was effected in pursuance of this finding, the claimant filed the present bill to open and re-examine the matter, and prayed an injunction to arrest the sale. The injunction was denied.

The point of the bill is, that the original judgment on which the fi. fa. issued was not signed by the plaintiff or his counsel. We have already decided that the omission to sign did not render the judgment void, aud was curable by amendment. Pollard vs. King, 62 Ga., 108. But were the judgment utterly void, it must be treated as valid so far as the claimant is concerned. ,'Iie has had his day in court, and there has been a final adjudication that the property is subject to the fi. fa. That adjudication necessarily involves the proposition that the fi. fa. was founded upon a valid judgment which had a lien upon the property. That the claimant did not know of the defect in the judgment until after his ease was tided and lost, makes no difference, for he might and ought to have krown of it. The bill renders no excuse for his ignorance, only that he presumed the officers did their duty, and that everything was regular and legal. To stand upon this presumption in one trial, and then claim a id obtain another trial in order to prove that it was at variance with the actual fact in the particular instance, would be to protract litigation unduly and unnecessarily. When a fi. fa. purports to rest upon a judgment, whoever resists a sale under the fi. fa. ought to look at the judgment. They?, fa. is but an arm; the judgment is the body out of wbicli it grows, and to which it is attached.

Judgment affirmed.