Hartley v. Hartley , 211 Ga. 616 ( 1955 )

211 Ga. 616 (1955) 87 S.E.2d 851

HARTLEY
v.
HARTLEY.

18923.

Supreme Court of Georgia.

Submitted April 11, 1955. Decided June 13, 1955.

J. D. Godfrey, Casey Thigpen, for plaintiff in error.

T. A. Hutcheson, contra.

MOBLEY, Justice.

1. The ruling in the first headnote does not require elaboration.

2. The terms of Washington Superior Court commence on the first Mondays in March and September. The equitable petition seeking the removal of the execution from the general execution docket was sanctioned on November 12, 1954, and a rule nisi was issued. On December 4, 1954, the defendant filed his general demurrer and an answer. On December 6, 1954, after hearing evidence, the trial court ordered the clerk of the superior court to cancel the execution of record, and denied the defendant's prayer that the appeal to the superior court be dismissed as a nullity, the same not having been transmitted to the clerk of the superior court in the manner prescribed by law.

It affirmatively appearing from the record that the order complained of was rendered prior to the term to which the case was returnable, to wit, the March term, 1955, the judgment was erroneous for the reason that the court was without jurisdiction to try the case and enter a final decree therein without an express agreement of the parties. Code (Ann. Supp.) §§ 81-201, 81-1003; Henderson v. Henderson, 206 Ga. 23 (3) (55 S.E.2d 578). Furthermore, under the pleadings an issue of fact is raised, and therefore the verdict of a jury is necessary. Code § 37-1101.

Judgment affirmed in part and reversed in part. All the Justices concur.