Hollinshead v. Woodard , 128 Ga. 7 ( 1907 )

Evans, J.

(After stating the facts).

1. An execution in favor of Woodard, administrator of Gano, against Harris, as executor of the will of H. C. Harris, was levied upon an improved town lot, and Hollinshead filed his .claim in the statutory form. The issue of fact therein was tried and the property found subject, and judgment duly entered tbereon. A motion for new trial was made and overruled, the claimant sued out a writ of error to this court, and the judgment was affirmed. Hollinshead v. Woodard, 124 Ga. 721. The unsuccessful claimant seeks in the present proceeding to enjoin the further enforcement of the execution, upon the various grounds set forth in the foregoing statement of facts, all of which are predicated upon facts existing at the time of the trial of the claim case. The defendant in error contends, that all of these issues were either actually made, or should have been made, in the trial of the claim case, and that the judgment therein concludes the claimant from raising these issues in the present proceeding. We will therefore address our inquiry to the soundness of this contention as presented by the demurrer.

This court on several occasions has in effect declared that a claim case, though on the law side of the court, partakes of the nature of an equitable proceeding. Williams v. Martin, 7 Ga. 377; Kennedy v. Redwine, 59 Ga. 330; Ford v. Holloway, 112 Ga. 851. It has sometimes been said that the issue to be tried in a claim case is that of title. Pierce v. DeGraffenried, 43 Ga. 392; Moss v. Stokely, 107 Ga. 233. But this is too narrow a statement of the full'extent of the issue involved in the adjudication of a claim case. The object of a claim is not only to try the question as to whether the title is in the claimant or the defendant in execution, but also whether the property levied upon is subject to the execution as against the title which the claimant sets up. DeLoach v. Myrick, 6 Ga. 412; Black v. Lewis, 30 Ga. 961; Alston v. Wilson, 64 Ga. 482. As was remarked by Judge Nisbet in Colquitt v. Thomas, 8 Ga. 265, in arguing the scope of the issue, "Nothing is, in truth, put in issue by the record, in a claim case, hut the liability of the property to the plaintiff’s judgment. The title of the claimant is tried, but no issue is made on the record about that. It is a feigned issue — feigned albeit it involves title to lands. That the sole legal issue is the liability of the property to the judgment, is proven by the verdict.” A claimant may attack an execution for any reason which the defendant in .execution could urge against it at the time of the trial of the claim case. New England Mortgage Co. v. Watson, 99 Ga. 735; Robinson v. Schly, 6 Ga. 529; Bradford v. Water Lot Co., 58 Ga. 282. Since the defendant may attack a judgment void upon its face, the claimant may take advantage of the fact that the judgment upon which the plaintiff in execution relies is a mere nullity, when this fact appears on the face of the record of the proceeding upon which such judgment was rendered. Osborne v. Rice, 107 Ga. 282; Hines v. Kimball, 47 Ga. 588; Krutina v. Culpepper, 75 Ga. 602; Gazan v. Royce, 78 Ga. 512; Dixon v. Williams, 82 Ga. 108; County of Pulaski v. Thompson, 83 Ga. 270. From an analysis of the foregoing cases it will appear that the determination of the issue involved in a claim case includes all attacks which the claimant could have made upon the validity of the process, as well as the assertion of his title.

In Pollard v. King, 63 Ga. 225, it was held, that after the claimant and plaintiff in fi. fa. have litigated through a regular claim case, and the property has been found subject, a court of equity will not enjoin a sale under the levy because the plaintiff’s judgment against the defendant in fi. fa. was not signed by the plaintiff or his counsel. And in Henderson v. Hill, 64 Ga. 292, it was held that after the claimant has litigated through a claim case, and the property has been found subject, and a judgment of affirmance has been rendered by the Supreme Court, he will not be heard to question the validity and binding force of the original judgment between the creditor and the debtor on which the levy rested, by showing, that at the time of the levy the judgment was void for dormancy. Counsel for plaintiff in error requests a review of the two last cited eases, but upon a careful consideration of the principle upon which they rest, we are of the opinion that the cases are correctly decided. The ground of attack upon the judgment in both cases was that it was void upon its face, — an attack which could have been made by the defendant, and for that reason was available to the claimant in the trial of the claim case, and necessarily included within the scope of the judgment rendered in the claim case. Garlington v. Fletcher, 111 Ga. 861.

How stand the various matters now urged by the plaintiff in error as grounds to enjoin the enforcement of the levy after the adjudication that the property levied on is subject to the fi. fa. ? The first allegation for equitable interference relates to the amendment changing the judgment de bonis propriis against W. H. Harris, to a judgment de bonis testatoris. This amendment was made before the execution issued. It was apparent upon the face of the proceedings upon which the judgment was predicated, and therefore the claimant was bound to make his objection in the claim case, or thereafter be estopped from subsequently asserting this ground of invalidity, even if the judgment was improperly amended. The next ground urged for enjoining the levy is that the execution was temporarily withdrawn from the clerk’s office pending the claim, and an entry of nulla bona entered thereon. Plaintiff in error can not, after the trial of the claim ease, urge the facts alleged with respect to this matter as amounting to an abandonment of the levy; because this entry was upon the fi. fa. at the time of the trial of the claim case, and the legal effect of the entry of nulla bona was necessarily involved in the validity of the process which subjected the property levied on.

The next attack upon the validity of the levy was because it was grossly excessive. If so, it was void. Brinson, v. Lassiter, 81 Co,. 40, and cases cited on page 42; Roser v. Georgia Loan Co., 118 Ga. 181, and eit. This was also involved in the issue which was tried in the claim1 case, and the plaintiff in error is concluded on this point by that judgment. Another contention why the levy should be enjoined is that the judgment and execution were satisfied, because the plaintiff in the judgment, before the levy, had sued out a process of garnishment against one Brown, and, with full knowledge that Brown was due the defendant in fi. fa. a sum largely in excess ■of the amount of his judgment, did, for a valuable consideration paid by the defendant in fi. fa., dismiss the garnishment and voluntarily release a'debt due by the garnishee to the defendant in fL fa. which was more than sufficient to satisfy the execution; and that subsequently' the garnishee paid the money to the defendant in fi. fa., who, with the consent of the plaintiff in fi. fa., applied it to the payment of other liens against the Harris estate, of inferior dignity. Even if it be conceded that these special facts would amount to an equitable extinguishment of the fi. fa. relatively to the plaintiff in error, he should have insisted on the same in the claim case. The issue there was whether the property levied upon was .subject to the fi. fa., and the claimant was bound to urge all of his objections which went to the total extinguishment of the fi. fa. A claimant will not be accorded the privilege of making a second attack, in a. subsequent proceeding, upon the validity of the plaintiffs process, because of his failure to set up any defensive equitable right by way of amendment to his claim. “Nothing is better set-tied than that the judgment of a court of competent jurisdiction is conclusive between the parties as to the matters at issue between them. . . Nor does this rule confine the effect of the judgment to such matters as were in fact pleaded. It is the bounden duty of parties to plead every fact, pro and con., that affects their respective rights, so far as the court has jurisdiction to hear and determine the question which such facts give rise to.” White v. Herndon, 40 Ga. 495. The claimant could have made the issue in the claim case that the fi. fa. had been extinguished with respect to him. If the fi. fa. was not operative against him by reason of its payment, or for any other cause, he could have shown and urged such fact in support of his claim. If he omitted to do this, he would nevertheless be concluded by the judgment in the claim case. Thus, it will be seen, every attack upon the validity of the judgment, which the claimant makes in his equitable petition, is concluded by the judgment in the claim case.

2. The petition alleged that inasmuch as the Gano debt was put into judgment after the death of H. C. Harris, it should rank with other debts of equal dignity, and be postponed to debts of higher dignity. It was alleged that the estate of H. C. Harris is insolvent, and that the pro rata share of the Gano judgment would not'amount to more than fifty per cent, of the principal and interest. It was prayed that Gan o’s administrator be enjoined from enforcing his execution, until an accounting with the executor of H. C. Harris could be had, and this amount ascertained before the plaintiff in error could be called on to pay the judgment. The obvious reply to this contention is that Gano, administrator, not only has a judgment against the estate of H. C. Harris, but it has been judicially determined by a court of competent jurisdiction, in a case to which plaintiff in error was a party, that the land levied on is subject to the execution which is sought to be enjoined. As to the plaintiff in error, this judgment is a valid and binding lien on the property against which it is proceeding by levy. We know of no rule of law whereby a claimant who has been concluded by a judgment in a claim case may require an accounting of a defendant in execution who is the- executor of an insolvent estate, to ascertain the relative priority of the judgment with the claims of other undisclosed creditors of his testator, and a reduction, from the face of the .judgment, of such amount as may be found from such accounting.

Judgment affirmed.

Fish, O. J., absent. The other Justices concur.