Ragan v. Standard Scale Co. , 123 Ga. 14 ( 1905 )

Lumpkin, J.

(After stating the facts.) The claimant in this case made an amendment to its claim, in which it sought affirmative equitable relief. The judge of the city court by his judgment sought to grant it. A city court in this State is without jurisdiction to grant such relief. English v. Thorn, 96 Ga. 557; Fowler v. Preferred Accident Insurance Co., 100 Ga. 330, 334; Moore v. Medlock, 101 Ga. 100; Hecht v. Snook & Austin Furniture Co., 114 Ga. 921. In the present case the parties appear to have proceeded before the judge of the city court by agreement. “Consent of parties, however, can not give a court jurisdiction of a subject-matter when it has nond by law; and when this court discovers from the record that the judgment has been rendered by a court having no jurisdiction of the subject-matter, and the case is brought here for review upon writ of error, this court will of its own motion reverse the judgment. If the judge has refused to entertain the motion, and that ruling has been excepted to and brought here for review, this court will, on motion or ex mero motu, dismiss the writ of error.” Smith v. Ferrario, 105 Ga. 51, 53, 54. The subrogation sought to be asserted was not of a purely legal character, such as may arise in favor of a surety who pays off in whole or in part a judgment or execution against his principal and has the fact of such payment duly entered. Civil Code, § 2986. The claimant desired to revive a cancelled mortgage, to assert equitable rights and obtain equitable relief; and the judge of the city court endeavored to mold his judgment accordingly. The amendment should have been stricken; and the judgment is reversed, with direction that this be done.

Judgment reversed with direction.

All the Jushees ■ concur, except Candler, J., absent.