Walker v. Inman

78 Ga. 53

• Court: Supreme Court of Georgia
• Decided: December 21, 1886
• Status: Published

Opinion

Hall, Justice.

The only question made by this case is, whether, where there has been a contest over a fund in court,' raised by constable’s sale under the execution of one of the contestants, and a judgment-has been rendered by the justice of the peace in favor of one of them, and the party against whom the decision was made has sued out' a certiorari to the same, and the certiorari on the hearing has been dismissed and the judgment below affirmed, another judgment rendered by the justice awarding the fund in controversy to a third party, claiming under an older lien than either of the others, but who made no claim until the first judgment had been rendered, and who did not make known his right pending the certiorari, ought to be allowed to stand. On a certiorari to this second judgment, the superior court was of opinion that it was improperly granted, and ordered it to be set aside; and we think he was right in so holding, because this execution was not presented in time, and its presentation did not authorize the disturbance of the first judgment, which had been sustained on certiorari, and consequently had relation to the date when it was rendered, and which at the same time finally disposed of the matter in controversy. The party ultimately claiming the money showed no diligence in the assertion of his rights and gave no sort of excuse for his delay in the matter. Vigilantibus, non dormientibus, jura subveniunt.

Judgment affirmed.