Wall v. Woolbright

71 Ga. 256

• Court: Supreme Court of Georgia
• Decided: October 2, 1883
• Status: Published

Opinion

Blandford, Justice.

The plaintiffs in error obtained a decree against the defendants in error, whereby the defendants were authorized to raise their mill-dam to a certain height, and that the defendants should clear their pond of all timber; and they were to have six months from the rendition of the decree so to do; and if they failed to clear the pond in this time of the timber, then the same should be abated as a nuisance. The plaintiffs, after the expiration of the time allowed for the clearing the pond of timber, filed an affidavit with the cleric of the superior court, in which they stated that the defendants had failed to clear the pond of timber. Thereupon the cleric issued a certain process directed to the sheriff, commanding him to pull down defendants’ dam and abate the same as a nuisance. To this process defendants filed their affidavit of illegality on several grounds, and upon the trial of this illegality the jury found the issue in favor of the affiants, the defendants. The plaintiffs made a motion for new trial on several grounds, which was refused by the court, and this refusal is assigned for error.

Under the decree rendered in this case, the cleric of the superior court had no power to issue the process which he did, and the same was null and void. So it would not matter what errors of law the court might have committed on the trial of the issues formed on the illegality, or whether the verdict of the jury was in accordance with or against the evidence. They did find in favor of the illegality of the process, and the same was quashed by the court. This judgment of the court was right. The cleric of the court could not execute this decree in this way. The judgment of the court below in overruling the motion for new trial is affirmed.

Judgment affirmed.