Interstate Trust Co. v. Citizens Bank

Gilbert, J.

1. There is no merit in the contention that the judgment “should be affirmed for the reason that a substantial copy of defendant’s motion to dismiss is neither specified in the bill of exceptions . . nor is a substantial copy thereof included in and made a part of said bill of exceptions, though the ruling on said motion is the only exception taken in the bill, and is not only material but essential to a clear understanding of the alleged error.” The motion to dismiss, as certified in the bill of exceptions, was oral, and raised the sole issue of the sufficiency of the petition. As such the recital in the bill of exceptions is sufficient.

2. “Courts have full power over their officers making execution sales; and whenever satisfied that a sale made under process is infected with fraud, irregularity, or error to the injury of cither party, the sale will be set aside.” Civil Code (1910), § 6032.

3. “While inadequacy of price at a sheriff’s sale will not, of itself, be a sufficient ground to set aside the sale [Civil Code (1910), § 4129], yet when it is grossly inadequate and is connected with fraud, mistake, misapprehension, surprise, or other circumstances which tend to bring about such inadequacy, to the injury of parties interested, the sale will be set aside by a court of equity.” Smith v. Georgia Loan &c. Co., 114 Ga. 189 (39 S. E. 846); Alston v. Wingfield, 53 Ga. 18; Ruis v. Branch, 138 Ga. 150 (74 S. E. 1081, 42 L. R. A. (N. S.) 1198) ; Croft v. Sorrell, 151 Ga. 92 (106 S. E. 108). In Parker v. Glenn, 72 Ga. 637, it was held that section 6032 of the Civil Code applied to execution sales as well as to private sales.

4. The facts alleged in the petition are sufficient, if established by proof, to entitle the petitioner to a judgment setting aside the sale. Under these facts the petitioner was not, as a matter of law, guilty of such laches as would estop it from applying for equitable relief.

5. The court erred in dismissing the petition.

Judgment reversed.

All the Justices concur. L. L. Moore’ and Martin L. Bivms, for plaintiff. Waldo BeLoache, for defendants.