Brown v. Wilson ( 1877 )

Bleckley, Judge.

It is not denied that they?, fa. follows the judgment. It is alleged, however, that the superior court could not render final judgment on the appeal, and enforce the same by execution. It is further alleged that the judgment actually rendered was not correct. The final ground of illegality is, that, before the remittitur from the supreme court was made the judgment of the superior court, the y?, fa. was levied upon more property, etc, Affidavit of illegality cannot go behind the judgment, where the defendant has had his day in court. Code, § 3671; 8 Ga., 143; 11 Ib., 137. There is no reason why the superior court could not render final judgment, and issue execution to enforce the same. An appeal from the ordinary carries up the whole record. Code, §3627. Where the result is a mere money recovery, the superior court is as competent to give effect to it as the ordinary. No statutory direction can be found for returning the case to the ordinary, and we know not why a direction should be considered as implied. Could the execution be levied before the judgment of the supreme court affirming the judgment below, denying injunction was made the judgment of the superior' court ? It is not alleged that the remittitur had not been filed in the office of the clerk of the superior court. When that was done, we think the execution could proceed, the injunction not having been granted, but denied, and the judgment denying it having been affirmed. This we arrive at, by considering the reason and spirit of sections of the Code 3215 and 4287. The only possible order which could be passed in such a case would be for the execution to proceed.

Cited for plaintiff in error, Code, §§3627, 2600, 2599, 3573, 4287, 3215 ; 52 Ga., 15 ; 27 Ib., 330 ; 1 Kelly, 355; 3 Ib., 126; 51 Ga., 482. For defendant, Code, §§1844, 2599 ; 45 Ga., 478; 54 Ib., 180, 501; 56 Ib., 534; Anderson vs. Usher, this term ; Code, §§ 3215, 4287, 4286; 39 Ga., 591, 597 ; 40 Ib., 94, 157, 213; 42 Ib., 233.

Judgment affirmed.