Smith v. Zachry

Supreme Court of Georgia

Smith v. Zachry

57 S.E. 513, 128 Ga. 290, 1907 Ga. LEXIS 87

CourtSupreme Court of Georgia

DecidedMay 15, 1907

StatusPublished

Cited by10 cases

This text of 57 S.E. 513 (Smith v. Zachry) 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

Smith v. Zachry, 57 S.E. 513, 128 Ga. 290, 1907 Ga. LEXIS 87 (Ga. 1907).

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Opinion

Lumpkin, J.

(After stating the foregoing facts.)

The evidence was not properly brought up, and can not be considered. The only questions which can be reviewed are the questions of law raised upon the sufficiency of the case made by the petition. All the controlling questions of law have been decided heretofore by this court. The lien upon this land of the judgments-based on notes waiving homestead and exemption rights was not discharged by the adjudication and discharge of the defendant in bankruptcy. The land involved in this controversy was set apart as a homestead by the court of bankruptcy. After the defendant's-discharge, the plaintiff proceeded to enforce his executions against the land. No legal reason appears- why he should not do so, Evans v. Rounsaville, 115 Ga. 684; Smith v. Zachry, Id. 722; McKenney v. Cheney, 118 Ga. 387; Smith v. Zachry, 121 Ga. 467.

If the allegations of the petition are to be taken as true, the sole purpose of the defendant and his wife in these repeated interpositions of claims and affidavits of illegality is to delay the proper enforcement of the law. If this be so, the law will not allow such a purpose to be effectuated; nor will equity turn a deaf ear and stand idly by and permit the defendant to reap the reward of such a scheme of delay, while the creditor not only is prevented from realizing the money justly due him, but also sees the land depreciating in value below the amount of the executions. There must be an end of litigation somewhere; and we think the presiding judge did nothing more than his manifest duty when he appointed a receiver to hold the land and collect the rents pending the exception to the judgment on the last affidavit of illegality. Hart v, Respess, 89 Ga. 87; Roberts v. Mullinder, 94 Ga. 493; Dawson v. Equitable Mortgage Co., 109 Ga. 389; Powell v. Achey, 87 Ga. 8.

Judgment affirmed.

All the Justices concur.

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Lumpkin, J.

(After stating the foregoing facts.)

The evidence was not properly brought up, and can not be considered. The only questions which can be reviewed are the questions of law raised upon the sufficiency of the case made by the petition. All the controlling questions of law have been decided heretofore by this court. The lien upon this land of the judgments-based on notes waiving homestead and exemption rights was not discharged by the adjudication and discharge of the defendant in bankruptcy. The land involved in this controversy was set apart as a homestead by the court of bankruptcy. After the defendant's-discharge, the plaintiff proceeded to enforce his executions against the land. No legal reason appears- why he should not do so, Evans v. Rounsaville, 115 Ga. 684; Smith v. Zachry, Id. 722; McKenney v. Cheney, 118 Ga. 387; Smith v. Zachry, 121 Ga. 467.

If the allegations of the petition are to be taken as true, the sole purpose of the defendant and his wife in these repeated interpositions of claims and affidavits of illegality is to delay the proper enforcement of the law. If this be so, the law will not allow such a purpose to be effectuated; nor will equity turn a deaf ear and stand idly by and permit the defendant to reap the reward of such a scheme of delay, while the creditor not only is prevented from realizing the money justly due him, but also sees the land depreciating in value below the amount of the executions. There must be an end of litigation somewhere; and we think the presiding judge did nothing more than his manifest duty when he appointed a receiver to hold the land and collect the rents pending the exception to the judgment on the last affidavit of illegality. Hart v, Respess, 89 Ga. 87; Roberts v. Mullinder, 94 Ga. 493; Dawson v. Equitable Mortgage Co., 109 Ga. 389; Powell v. Achey, 87 Ga. 8.

Judgment affirmed.

All the Justices concur.

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Bluebook (online)

57 S.E. 513, 128 Ga. 290, 1907 Ga. LEXIS 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-zachry-ga-1907.

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