Wyley v. Whitely , 38 Ga. 605 ( 1869 )

Brown, C. J.

1. After Wyley had commenced proceedings’against' Mrs. Whitely, as an intruder, under section 4000 of the Eevised Code, he sold the premises in dispute to Alston, who filed his bill against Mrs. Whitely, et al., on the equity side of the Court. She answered the bill, and set up equities in her own- favor. Alston then moved to dismiss his bill. Her counsel objected on the ground that she had a right to a hearing on the equities set up by her answer. The Court sustained the objection and refused to dismiss the bill, which decision was not excepted to by Alston. The case was, therefore, still pending in equity, and that Court having obtained jurisdiction and control of it, has a right to' hold it for adjudication.

2. While the case was still pending in equity between Wyley’s vendee and Mrs. Whitely, Wyley came into Court and moved a rule against the sheriff, to compel the sheriff to dispossess Mrs. Whitely, .and put him in possession, on account of a defect in Mrs. Whitely’s affidavit, filed in the proceeding instituted by him against her, as an intruder. The Court refused to make the rule absolute, and this ruling is excepted to. We think the Court did right. The case was still pending in equity. That Court having obtained control of it, will administer equity to all the parties, and it would be improper for the Court of common law to interfere, and by its order change the possession of the premises, from one claimant to the other, on account of a technical defect in the original proceedings at law, before the decision of the Court of equity has settled the rights of the parties.

Judgment affirmed.