Dockery v. Parks

Whitman, Judge,

dissenting. I dissent from the majority opinion in this case. I regard the case of Tingle v. Atlanta Federal Sav. &c. Assn., 211 Ga. 636 (87 SE2d 841), conformed to by this court, 93 Ga. App. 393 (91 SE2d 804), as controlling, and that this court rather than the Supreme Court has jurisdiction of the appeal on the merits, including the overruling of appellants’ plea in abatement.

The case of Wilson v. Trustees of Union Theological Seminary, 181 Ga. 755 (3) (184 SE 290), is not regarded as contrary to or conflicting with the case of Tingle. The case of Wilson as originally brought was an equitable petition to enjoin the exercise of a power of sale contained in a security deed and on the interlocutory hearing an injunction was refused and it was ordered that the proposed sale, if made, should be subject to confirmation by the court. After the sale the plaintiff filed an amendment objecting to the confirmation of the sale on the ground of an alleged agreement as to readjusting and extending the debt. While it is stated in the opinion in that case that “this was an equity case,” the question involved as to confirmation of the sale had to do only with the term of court at which the confirmation order was' had, and the Supreme Court also passed on the question of the refusal of the interlocutory injunction by the lower court, in that connection holding that the bill of exceptions as to the refusal of the interlocutory injunction and allowing the sale to proceed subject to the confirmation of the court was tendered too late to raise that question. The Wilson case did not involve the question of jurisdiction as between the Supreme Court and the Court of Appeals in relation to confirmation of the sale.

Code §§ 37-601 and 37-606 appear to relate to powers of appointment and similar powers founded on trust or confidence and not to powers of sale in security deeds dealt with in Code Ann. § 37-607.

I am authorized to state that Judges Pannell and Deen concur in this dissent.