Twitty v. Bower , 84 Ga. 751 ( 1890 )

Simmons, Justice.

1. Under the facts set out in the official report of this case, the trial judge did not err in holding that the judgment rendered in the justice’s court in 1875 was not dormant. It will be seen • from the facts reported, that after the judgment was rendered against Twitty and the other defendants, they appealed from that judgment to the superior court. The effect of the appeal was to suspend the judgment in the justice’s court until the appeal to the superior court had been finally disposed of. Code §3628. It appears from the record that after the appeal was entered in the superior court, the judge thereof, in the absence of the appellants, rendered a judgment against them without the intervention of a jury. From this judgment an execution was issued and levied, and an affidavit of illegality was filed thereto, which was returned to the superior court and sustained by the judge thereof, the judge holding that the former judgment of the superior court on the appeal entered by the judge thereof without the intervention of a jury, was illegal and void; and the judgment was set aside and the appeal case reinstated. On motion of Bower, the appellee, the appeal was then dismissed. We think this was a legal effect of the ruling of the judge setting aside the former judgment on appeal, and it was the same as if the appeal had never been tried and had been pending in the superior court from the time it was first entered up to that time, and it was properly reinstated. Beall v. Sinquefield, 73 Ga. 48. That being so, the statute of limitations did not run in favor of Twitty, the plaintiff in error, against the judgment in the justice’s court, hut as we have before remarked, the appeal suspended that judgment, and did not vacate it. An execution could not have been issued upon the judgment in the justice’s court as long as the appeal was pending in the superior court, whether Twitty was one of the plaintiffs or not. Allison v. Chaffin, 8 Ga. 330. See also Code, §§3620, 3627.

2. There was no error in sustaining the demurrer to the second ground of the affidavit. The reasons alleged therein for the illegality were insufficient in law. He does not say whether the copy summons served upon him was defective, or whether the original summons was defective. When the summons commanded him to appear at the justice’s court on the 27th of March, of course it meant March of that year, unless it was served on him after March of that year, and there is no allegation that it was so served. At any rate, we think lie recognized the validity of the summons and the judgment by entering an appeal from the judgment to the superior court. Judgment affirmed.