Jones v. Hammack

Simmons, Justice.

Hammack brought suit on a promissory note for $140, given by one Wesley Jones, as trustee of certain trust property described in the declaration. The trustee died after the note was given and before this suit was brought; and no successor was appointed in his place. The declaration set out the beneficiaries of the trust and described the property of the trust estate, and prayed process against said beneficiaries. It alleged that the note was given for a cotton gin which was necessary for the trust estate. All the beneficiaries were properly served, and they filed pleas to said action. Judgment was rendered by the court for the amount due on the note. The judgment recites that “ J. B. Jones is, under the terms of the deed creating said trust estate, entitled to a life estate in the said trust property” (describing it), “ and it further appearing that said trust estate is liable for said debt, it is adjudged that the said sums as aforesaid be paid out of the life estate of said J. B. Jones in the aforesaid described trust land.” Upon this judgment execution was issued, and was levied upon his life estate in a portion of the trust lands. J. B. Jones filed an affidavit of illegality thereto, upon the ground that the levy was illegal and void because it did not follow the judgment, and for uncertainty; and that the j udgment was illegal and void because it was against the life estate of the deponent, and because it did not follow the declaration, and was void for uncertainty because the trust estate had no such title to the land levied upon as could then be sold.

This illegality was demurred to as to all the grounds thereof, and the demurrer was sustained. No exception was taken to the judgment sustaining the demurrer. Afterwards, J. B. Jones, for himself and other beneficiaries, filed a claim to the land levied on. After the introduction of evidence in the case, it was submitted to the judge for decision without the intervention of a jury, and he held the property subject on the ground that the same questions made in the claim case were made and decided against the claimants in the affidavit of illegality, and that the judgment in that case having been against the defendants and unexcepted to, it was binding upon them in this case. They excepted to this ruling and brought the case here.

We thhik the court was right. All the questions made in the claim case were decided against J. B. Jones upon his affidavit of illegality. The judgment sustaining the demurrer to the grounds of the affidavit of illegality was unexcepted to, and was therefore a valid and binding judgment upon him. The court that sustained the demurrer to the illegality, had jurisdiction of the subject-matter and the parties ; and whether the judgment was right or wrong, it binds the parties to that proceeding. The same may be said of the original judgment upon the suit brought on the note. The court that rendered that judgment had jurisdiction of the subject-matter and the parties, and that judgment was unexcepted to, and binds them. The original judgment may have been erroneous, under the pleadings in the case, but was not void, as was contended here by the counsel for the plaintiffs in error. If there were any defects in the pleadings, as claimed by counsel for plaintiffs in error, they were amendable, and were cured by the judgment. See Zimmerman v. Tucker, 64 Ga. 432 ; Artope v. Barker, 74 Ga. 462.

Judgment affirmed.