Smith v. Equitable Mortgage Co. , 98 Ga. 240 ( 1896 )

Atkinson, Justice.

The official report in this case states the facts.

A motion made during the progress of a case for the allowance of any privilege or the adjudication of any right which may fall within the pleadings of a cause pending in the superior court, may be made orally, as well as in writing; and -if the judgment of the court pronounced upon such motion be registered upon the minutes of the court, this will suffice to sustain the judgment. But where it is sought to invoke the powers of the court touching matters which lie outside the pleadings, though in some sense pertinent to the cause, the court can acquire jurisdiction for that purpose only through the ineans of a written application or motion for the relief desired; and this is true, whether such collateral matter be between the same parties who are at issue upon the main case, or be between one of the parties to the main case and a stranger to the record. It is essential to the validity of a judgment rendered upon suck a motion, that tke person to be affected thereby should have notice of the application and an opportunity to be heard upon it. The necessity for a strict observance of these rules is well illustrated in the facts of the present case.

In this case, a piece of property was a exposed for sale under an execution and sold. During the term of the superior court next ensuing the sale, oral application was made to the presiding judge for an order directing the eviction of one who was a stranger to the record in the case, and who does not appear, from the language of the order itself, to be liable to- eviction under this summary proceeding; for under section 3651 of the code no person other than the defendant, his heirs or their tenants or assignees since the judgment, can be summarily evicted from, the land by virtue of an execution sale thereof. No motion was made of which the party to be affected by it had notice, and yet the court, without getting jurisdiction of this person, was asked to proceed against her in the face of the plain and manifest provision of the code which protected her possession against summary judicial invasion.

~We doubt not had the court, under rule 46 of the superior court, required this motion to be reduced to writing, required it to be served upon the party to be affected by it, required it to be placed upon the docket in accordance with paragraph 5 of section 267 of the code, this plaintiff in error could have shown satisfactory reason against her dispossession; at least she would have had the opportunity to make the showing, and the court would have had such jurisdiction of her person as would have enabled him to render a valid decree in the premises. Judgment reversed.