Stamps v. Hardigree , 100 Ga. 160 ( 1897 )

Atkinson, Justice.

1. To substantiate the proposition announced in the first head-note, it is only necessary to examine the act to which reference is made. Acts 1896, p. 45.

2. Jurisdiction of the person and subject-matter is essential to the validity of a judgment. As to the former, it may be waived; as to the latter, it may not. So far as appears from the record, the subject-matter of the litigation involved in the claim case was within the jurisdiction of the justice’s court to which, it was returned. In the regular course of proceedings it would probably have been correct to have returned the execution and claim to the court whence the execution issued, in order that the issue upon the claim might be there tried, but it was entirely competent for the parties to waive this proceeding. Conceding even that the execution was returned to the wrong justice’s court in the present case, yet it appears from the record that the claimant appeared and joined issue with the plaintiff in execution, tried the question of title, and acquiesced in the judgment subjecting the property. "When she afterwards brought an action of •trover to recover the property levied on from the person to whom it was sold at judicial sale, after its condemnation in the claim case, the judgment rendered in that case was as conclusive against her as to all matters which were involved therein, as the judgment in the present case would be in the event the defendant shall finally prevail. In the case of Almand v. Scott, 83 Ga. 403, it was decided that if a claim be interposed, and be returned to the district in which the defendant resides, and the claimant go to trial there without objection to the jurisdiction, he waives that objection. That the [distress] warrant is returnable to another district does not entitle him to have the levy dismissed. So we think that inasmuch as the plaintiff in the present case was a party to the claim case, submitted herself to the jurisdiction of the court to which it was returned, and acquiesced in the judgment, that judgment settles the title to the property so far as she is concerned; and whether or not it be so in fact, it is in law, by force of the judgment, the property of the defendant in execution, and the purchaser thereof at judicial sale under the same execution takes the title free from any supposed right of the claimant.

"We conclude, therefore, that the court erred in not holding the plaintiff estopped by the judgment in the claim case, and in excluding from-the jury the evidence offered by the defendant in support of his title.

Judgment reversed.

All the Justices concurring.