Brewer v. Jones , 44 Ga. 71 ( 1871 )

Lochrane, Chief Justice.

It appears from the facts in this case that the magistrate failed to mark counsel’s name to a case pending before him, and owing to the mistake a judgment was entered up. The defendant being ignorant of what transpired, permitted the time for entering an appeal to elapse, and this bill was filed to restrain the levy under the judgment. The Court below refused the injunction, and that is the ground of error assigned.1 By this bill the facts going to show the mistake made by the magistrate are detailed, and also the merits of the case presented, by which the complainant avers that he was not liable for the debt; that it was a conditional promise to pay the debt of a third party, and the conditions had not been carried out. The answer of the defendant denies the conditions set out in the bill.

We think, under all the facts of this case, that the Court erred in refusing an injunction. The main ground we put it on is the mistake by which the judgment was obtained. Equity has jurisdiction over matters of mistake, and we think the detail of facts in the bill made out a case for equitable interposition until the hearing could be had on the evidence in the ease. As to the merits, we do not now entertain that question further than to say the fact of liability was a question for the jury, and we reverse the judgment of the Court below, to let the parties have a hearing upon all the facts and evidence in the case.

Judgment reversed.